Regional 
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A   LIST    OF   VALUABLE    STANDARD 

LAW   BOOKS; 

PUBLISHED    AND    FOR    SALE    BY 

COLLINS,  KEESE  &  CO. 
No.  254  PEARL  STREET,  NEW  YORK. 


BURROW'S  REPORTS.  Reports  of  cases  argued  and  determined 
in  the  Court  of  King's  Bench  under  Lord  Mansfield,  from  1756  to 
1772,  in  five  volumes.  By  Sir  James  Burrow,  Knt.,  late  master 
of  the  Crown  Office  and  Bencher  of  the  Inner  Temple.  Second 
American  from  the  Fourth  London  Edition,  edited  by  /.  Prescott 
Hall,  Esq.  Five  volumes  bound  in  one. 

COWPER'S  REPORTS.  Reports  of  cases  adjudged  in  the  Court 
of  King's  Bench,  from  1774  to  1778,  in  two  volumes,  by  Henry 
Cowper,  Esq.  of  the  Middle  Temple,  Barrister  at  Law,  with  notes 
of  reference  to  similar  cases  in  subsequent  reporters.  Second 
American  from  the  last  London  Edition,  edited  by  /.  Prescott  Hall, 
Esq.  Five  volumes  bound  in  one. 

DURNFORD  &  EAST'S  REPORTS.  Reports  of  cases  ad- 
judged in  the  Court  of  King's  Bench,  from  1785  to  1800,  by 
Charles  Durnford  and  Edward  Hyde  East,  Esqrs.  of  the  Temple, 
Barristers  at  Law,  in  eight  volumes.  Tliird  American  from  the 
Fifth  London  Edition,  corrected  with  additional  references  to  later 
English  and  American  authorities.  Eight  volumes  bound  in  four. 

ENGLISH  COMMON  LAW,  FIRST  SERIES;  containing  Bur- 
row's,  Cowper's,  and  Durnford  &  East's  Reports.  Fifteen  volumes 
bound  in  eleven. 

This 'series  includes  all  the  Standard  English  Reports,  from  1756 
to  1800,  inclusive,  and  contains  a  body  of  Law  and  Precedents 
that  no  member  of  the  Bar  can  do  without.  East,  Maule  and  Sel- 
wyn,  and  Bam  well  and  Alderson,  which  form  the  connecting  link 
between  the  above  and  the  Philadelphia  Edition  of  the  Common 
Law  Reports,  are  now  being  reprinted  ;  when  finished,  the  whole 
will  make  a  complete  series  of  the  English  Common  Law  Reports 
from  1756  to  the  present  time. 


CRUISE'S  DIGEST.  A  Digest  of  the  Laws  of  England  respecting 
Real  Property ;  by  William  Cruise,  Esq.,  Barrister  at  Law.  Fourth 
American  from  the  third  and  last  London  Edition,  revised  and 
corrected  by  the  author,  with  notes  and  references  by  Thomas 
Huntington,  Esq.,  Counsellor  at  Law.  Six  volumes  bound  in 
three. 

HOVENDON  ON  FRAUDS.  A  General  Treatise  on  the  Princi- 
ples and  Practice  by  which  Courts  of  Equity  are  guided  as  to  the 
Prevention  and  Remedial  Correction  of  Fraud,  with  numerous  in- 
cidental notices  of  Collateral  Points,  both  of  Law  and  Equity.  By 
John  Eyken  Hovendon,  Esq.  of  Gray's  Inn,  Barrister  at  Law. 
First  American  Edition,  with  notes  and  references  to  American 
Decisions,  by  Thomas  Huntington,  Esq.  Counsellor  at  Law.  Two 
volumes  bound  in  one. 

GOULD'S  PLEADING.  A  Treatise  on  the  Principles  of  Plead- 
ing in  Civil  Actions,  by  James  Gould.  Second  Edition,  revised 
and  corrected  by  the  author.  One  volume. 

Extract  of  a  letter  from  Chief  Justice  Marshall,  dated, 

RICHMOMD,  Dec.  3rd,  1832. 

I  hare  read  the  work  through  with  advantage  to  myself,  and  with  some  surprise  at 
finding  that  a  subject  which  has  employed  so  many  pens,  should  still  admit  of  being  pre- 
sented in  a  form  that  may  make  the  book  an  acquisition  certainly  to  the  Law  Student, 
and  indeed  to  the  profession.  You  have  well  arranged  the  matter  belonging  to  the  subject, 
and  have  succeeded  in  your  design  of  presenting  it,  "  as  a  system  of  consistent  and  ra- 
tional principles,  adapted  with  the  utmost  precision  to  the  administration  of  justice,  ac- 
cording to  uniform  rules." 

By  showing  the  reason  of  the  rule  plainly,  the  rule  itself  becomes  more  intelligible 
to  the  student,  and  will  more  certainly  adhere  to  his  memory. 

Allow  me  to  repeat  my  thanks  for  the  gratification  afforded  me  by  the  perusal  of  your 
work,  and  to  assure  you  that  I  am  with  very  great  respect, 

Your  obliged  and  obedient  servant, 

J.  MARSHALL. 


Extract  of  a  letter  from  Chief  Justice  Spencer,  dated, 

ALBANY,  Dec.  27th,  1832. 

If  my  opinion  is  entitled  to  any  consideration,  it  is,  that  you  have  given  to  the  pro- 
fession a  work  evidently  useful  ;  and,  I  may  add,  have  supplied  what  was  wanting, — a 
logical  and  scientific  treatise  on  a  most  essential  part  of  legal  science.  It  has  always 
been  my  opinion,  that  no  man  could  be  an  accomplished  lawyer  unless  he  was  thoroughly 
imbued  with  the  learning  of  Pleading, 

With  sentiments  of  high  esteem  and  respect, 

Yours  sincerely, 

A.  SPENCER. 

DUER'S  JURISPRUDENCE.  Outlines  of  the  Constitutional  Ju- 
risprudence of  the  United  States,  designed  as  a  Text  Book  for 
Lectures  and  popular  use,  by  William  Alexander  Duer,  L.  L.  D., 
President  of  Columbia  College  in  the  city  of  New-York.  One 
volume,  12mo. 

COMYN  ON  CONTRACTS.  The  Law  of  Contracts  and  Pro- 
mises upon  various  subjects,  and  with  particular  persons,  as  settled 


in  the  action  of  assumpsit ;  in  three  parts,  by  Samuel  Comyn,  Esq. 
of  the  Middle  Temple,  Barrister  at  Law.  Third  American  from 
the  last  London  Edition,  with  notes  and  references  to  American 
authorities,  by  Thomas  Huntington,  Esq.  Counsellor  at  Law.  One 
volume. 

STARKIE  ON  SLANDER.  A  Treatise  on  the  Law  of  Slander, 
Libel,  Scandalum  Magnatum,  and  False  Rumours  ;  including  the 
Rules  which  regulate  Intellectual  Communications  affecting  the 
character  of  individuals  and  the  interest  of  the  public.  With  a 
description  of  the  Practice  and  Pleadings  in  Personal  Actions, 
Informations,  Indictments,  Attachments  for  Contempts,  &c.  con- 
nected with  the  subject.  By  Thomas  Starkie,  Esq.,  of  Lincoln's- 
Inn,  Barrister  at  Law.  With  notes  and  references  to  American 
Decisions.  By  Thomas  Huntington,  Esq.  Counsellor  at  Law.  One 
volume. 

FOUBLANQUE  ON  EQUITY.  A  Treatise  on  Equity,  with 
notes  and  references,  by  John  Foublanque,  Esq.,  Barrister  at  Law. 
Fourth  American  Edition,  with  additional  notes  and  references  to 
American  Chancery  Decisions.  By  Anthony  Laussat,  Esq.  of  the 
Philadelphia  Bar.  One  volume. 

ATKYNS'  REPORTS.  Reports -of  cases  argued  and  determined 
in  the  High  Court  of  Chancery,  in  the  time  of  Lord  Chancellor 
Hardwicke,  by  John  Tracey  Atkyns,  of  Lincoln's-Inn,  Baron  of  the 
Exchequer.  Third  Edition  revised  and  corrected,  with  notes  and 
references  to  former  and  modern  determinations,  and  to  the  Re- 
gister's Books.  By  Francis  William  Sanders,  Esq.  of  Lincoln's- 
Inn.  First  American  from  the  Third  London  Edition,  in  three 
volumes. 

MERIVALE'S  REPORTS.  Reports  of  cases  argued  and  deter- 
mined in  the  High  Court  of  Chancery,  from  1815  to  1817.  By 
/.  H.  Merivale,  Esq.,  of  Lincoln's-Inn,  Barrister  at  Law.  First 
American  from  the  last  London  Edition,  in  three  volumes. 

STARKIE'S  REPORTS.  Reports  of  cases  determined  at  Nisi 
Prius  in  the  Courts  of  King's  Bench  and  Common  Pleas,  and  on 
the  Circuit,  from  1814  to  1819.  By  Thomas  Starkie,  Esq.  of  Lin- 
coln's-Inn, Barrister  at  Law.  First  American  Edition,  in  three 
volumes. 

REEVE  ON  DESCENTS.  A  Treatise  on  the  Law  of  Descents 
in  the  several  United  States  of  America,  by  Tapping  Reeve,  late 
Chief  Justice  of  Connecticut.  One  volume. 

CHITTY'S  BLACKSTONE.  Commentaries  on  the  Laws  of  En- 
gland, in  Four  Books,  with  an  Analysis  of  the  work.  By  Sir  Wil- 
liam Blackstone,  Knt.,  Justice  of  the  Court  of  Common  Pleas. 


From  the  Eighteenth  London  Edition,  with  a  life  of  the  Author, 
and  notes  by  Christian,  Chitty,  Lee,  Hovendon,  and  Ryland ;  and 
references  to  American  Cases,  by  a  member  of  the  New- York  Bar. 
In  two  volumes. 

CHITTY  ON  BILLS.  A  Practical  Treatise  on  Bills  of  Exchange, 
Banker's  Cash  Notes,  Checks  on  Bankers,  Promissory  Notes  and 
Bank  Notes.  By  Joseph  Chitty,  Esq.  of  the  Middle  Temple.,  Barris- 
ter at  Law.  Eighth  American  from  the  Eighth  London  Edition; 
greatly  enlarged  and  improved,  containing  the  American  notes  of 
former  Editions,  with  an  Appendix  of  Precedents,  and  the  deci- 
sions of  the  English  and  American  Courts,  brought  down  to  the  year 
1834.  By  P.  0.  Beebee,  Attorney  at  Law.  One  volume,  1000  pages. 

CHITTY'S  PLEADINGS.  A  Treatise  on  the' Parties  to  Actions. 
Forms  of  Actions,  and  Pleading,  with  a  Collection  of  Practical 
Precedents,  and  notes  thereon.  By  Joseph  Chitty,  Esq.  of  the 
Middle  Temple,  Barrister  at  Law.  Seventh  American  from  the 
last  London  Edition,  with  notes  and  additions  by  John  A.  Dunlap, 
Esq.  and  references  to  late  decisions,  by  E.  D.  Ingraham,  Esq. 
Three  volumes. 

CHITTY'S  CRIMINAL  LAW.  A  Practical  Treatise  on  the  Crim- 
inal Law,  comprising  the  Practice,  Pleading,  and  Evidence  which 
occur  in  Criminal  Prosecutions,  with  a  copious  collection  of  Pre- 
cedents and  comprehensive  notes.  By  Joseph  Chitty,  Esq.  of  the 
Middle  Temple,  Barrister  at  Law.  Third  American  from  the  last 
London  Edition,  corrected  and  enlarged  by  the  author.  With  notes 
and  corrections,  by  Richard  Peters  and  Thomas  Huntington,  Esqrs. 
and  references  to  the  latest  English  and  American  Decisions. 
By  J.  C.  Perkins,  Esq.  Counsellor  at  law.  Three  volumes. 

ARCHBOLD'S  APPENDIX.  A  Collection  of  the  Forms  and  En- 
tries which  occur  in  practice  in  the  Courts  of  King's  Bench  and 
Common  Pleas,  in  Personal  Actions  and  Ejectment.  By  John 
Frederick  Archbold,  of  Lincoln's-Inn,  Barrister  at  Law. 

BINGHAM  ON  INFANCY.  The  Law  of  Infancy  and  Coverture. 
By  Peregrine  Bingham,  A.  B.  of  ihe  Middle  Temple.  First  Ame- 
rican from  the  last  London  Edition,  with  Notes  and  References  to 
American  Decisions,  by  a  member  of  the  New-Hampshire  Bar. 
One  volume. 

KENT'S  COMMENTARIES.  Commentaries  on  American  Law, 
by  James  Kent.  Third  Edition,  revised  and  corrected  by  the  Au- 
thor. Four  volumes. 


COLLINS.  KEESE  &  CO.  have  constantly  on  hand  all  the  standard  English  Re- 
ports, Digests,  and  Treatises  on  Particular  Subjects  ;  together  with  the  various  State 
Reports  and  Digests,  and  a  general  assortment  of  Law  Books  of  every  description. 


TREATISE 


ON    THE 


PKINCIPLES  OF  PLEADING, 

IN  CIVIL  ACTIONS. 


BY  JAMES  GOULD. 


'It  is  one  of  the  most  honorable,  laudable,  and  profitable  (useful)  things  in  our  law,  to  have 
the  science  of  well  Pleading,  in  actions,  real  and  personal.'  Littleton. 

Online  placitandi  servato,  servatur  et  Jus.  Coke. 

'  The  Law  itself  speaketh  by  good  pleading3—'  as  if  pleading  were  the  living  voice  of  the 
Law  itself.'  t'fr. 


SECOND  EDITION, 

REVISED    AND   CORRECTED   BV   THE   AUTHOR. 


NEW  YORK : 

PUBLISHEP  BY  B.  AND  S.  COLLINS. 
1836. 


Entered  according  to  Act  of  Congress,  in  the  year  1831, 

BY  JAMES  GOULD, 
In  the  Clerk's  Office  of  the  District  Court  of  Connecticut. 


T 


E.  &  L.  MERRIAM,  PRINTERS, 
Srookfield,  Mass. 


TO  THE 

HON.  ROGER  MINOT  SHERMAN,  LL.D. 

THE  FOLLOWING  TREATISE  IS  INSCRIBED, 
AS  A  TESTIMONIAL  OF  THE  GREAT  RESPECT, 
AND  SINCERE  AFFECTION, 

OF  HIS  FRIEND  AND  BROTHER, 

THE  AUTHOR. 


667G22 


PREFACE. 


IT    is    probably  known   to   most   of    those,    into 
whose  hands  the  following  Treatise  is  most  likely 
to  fall,  that  I  have,  for  many  years,  been  employed 
in  the  instruction  of  Law-Students,  by  a  course  of 
Lectures,  embracing  all  the  principal  titles  of  the 
common  law.     The  work,  here  presented,  contains, 
with  some  additions,  the  substance  of  my  lectures 
on  Pleading.     This,  and  the  several  other  titles,  I 
have  digested,  upon  one  uniform  plan,  with  a  view, 
originally,  to  the  possible  future  publication  of  some, 
or  most  of  them.     But  the  further  prosecution  of 
this  purpose  will  probably  depend,  in  a  great  mea- 
sure, upon  the  degree  of  countenance,  which    may 
be  shown,  by  the  Profession,  to  the  present  publi- 
cation.    It  may  tye  proper,  however,  to  suggest,  in 
this  connexion,  that  though  my  digests  of  all  the 
other   titles   have   been  formed   upon  precisely  the 
same  general  plan,  as  that  of  pleading ;  yet  the  lat- 
ter far  exceeds,  in  length,  any  of  the  others.      No 


VJ  PREFACE. 

other  single  title,  in  the  whole  number,  will  proba- 
bly extend  to  more  than  half  the  length  of  the  pre- 
sent ;  and  most  of  them  will  not  occupy,  singly, 
even  one  third  of  the  space  devoted  to  the  present 
work. 

The  limits  of  the  present  Treatise  have  been 
thus  extended,  chiefly  by  the  frequent  and  copious 
reasonings  and  illustrations,  which  have  been  deem- 
ed necessary  to  the  elucidation  and  vindication  of 
rules  of  pleading,  and  which  that  title  more  emi- 
nently requires,  than  almost  any  other  in  the  law. 
To  those  of  the  Profession,  who  are  already  well 
versed  in  the  scien'ce  of  pleading,  many  of  these 
reasonings  and  illustrations  may  probably  appear  su- 
perfluous :  But  such  are  requested  to  consider,  that 
the  digest,  from  which  the  work,  in  its  present 
form,  has  been  prepared,  was  originally  made  for 
the  instruction  of  Students  at  Law,  to  whose  use 
the  Treatise  is  meant  to  be  especially  adapted  ;  and 
that  the  entire  work  is  intended  to  be  as  elementary, 
as  if  had  been  designed  exclusively  for  that  class  of 
readers. 

The  title  of  Pleading  has  been  selected  for  prp- 
sent  publication,  for  several  reasons,  not  necessary 
to  be  detailed  ;  but  principally,  because  it  is  deem- 
ed to  be  the  most  instructive,  and  therefore  the 


PREFACE.  Vll 

most  important  single  title  in  the  law,  and  yet  is 
less  thoroughly  understood,  in  general,  than  almost 
any  other.  The  relative  importance  of  pleading, 
among  the  several  titles  of  the  common  law,  has 
been  fully  attested,  by  the  most  distinguished  and 
authoritative  names,  which  adorn  the  list  of  com- 
mon-law jurists.  Lord  Coke,  in  particular,  among 
his  other  and  frequent  commendations  of  the  science 
of  pleading,  has  characterized  it,  as  '  the  truest  guide 
to  the  knowledge  of  the  common  law' — as  '  the 
KEY,  that  opens  its  inmost  recesses,  and  an  EX- 
POSITOR, that  discloses  and  explains  the  most  ab- 
struse parts  of  it.'^  j  This  pre-eminence  it  owes, 
not  solely  to  the  intrinsic  value  of  its  own  exact 
and  logical  principles,  but  also,  and  in  no  small  de- 
gree, to  the  fact,  that  the  principles  of  pleading  are 
necessarily  and  closely  interwoven,  both  in  theory 
and  practice,  with  those  of  every  other  title  of  the  law. 
I  say,  '  necessarily'  interwoven,  because  even  the 
most  simple  of  the  judicial  remedies,  which  the  law 
affords,  and  without  which  it  would  be,  practically, 
a  dead  letter,  cannot  be  obtained,  without  the  aid 
of  pleading.  And  it  has  been  well  remarked  by  an 
intelligent  Judge,  that  if  the  practice  of  special 
pleading  were  entirely  banished  from  courts  of  jus- 
tice ;  the  science  of  pleading  would  still  be  the 
most  instructive  branch  of  the  common  law. 


Vlll  PREFACE. 

The  question  will,  however,  naturally  present  it- 
self— What  can   be   the  probable  utility  of  a  new 
original  work  on  Pleading,  while  so  many  others, 
on  the  same  subject,  are  already  in  the  hands  of  the 
Profession  ?     On  this  point  I   cannot,  perhaps,  bet- 
ter explain  my  own  views,  than  by  merely  stating 
the    OBJECT   of   the   present    Treatise,    which — to 
express  it  in    few  words — is  simply  to  render   the 
doctrines  of  Pleading  more  intelligible,  and  more  easy 
of  attainment,  than  many  have  supposed   them  to 
be,  by  showing  them  to  be  reasonable :     In  other 
words,  by  exhibiting  them,  not  as  a  compilation  of 
positive  rules ;  but  as  a  system  of  consistent  and  ra- 
tional principles,  adapted,  with  the  utmost  precision, 
to  the  administration  of  justice,  according  to  uniform 
rules,  or,  (which   is  the    same   thing),  according  to 
law.     How  far   I   may  have  advanced  towards   the 
attainment  of  this  object,  it  is  for  others  to  decide. 
But  I    shall    not,  I    trust,  be  deemed    invidious  or 
presumptuous,  in  venturing  to  remark,  that  most  of 
our  digests  and   treatises,  on  the  title  of  pleading, 
are  useful,  rather  as  manuals,  or  books  of  reference, 
for  the  practitioner,  than  as  works  of  instruction  in 
the  science  of  pleading.     The  same  remark  may,  in- 
deed, be  extended    to   almost   all  our  modern  and 
most  popular  treatises,  upon  the  various  other  titles 
of  the  common   law.     For  while  every  other  science 


PREFACE.  IX 

is  taught,  by  a  detailed  explication  of  its  principles, 
the  doctrines  of  the  common  law  are  usually  ex- 
hibited, in  our  legal  treatises,  as  if  they  were  the 
insulated  enactments  of  positive  law — without  re- 
ference to  the  reasons  on  which  they  rest.  And 
thus  the  common  law  is  presented  in  most  of  our 
books,  rather  as  an  art,  than  a  science ;  and  the 
acquisition  of  it  made  to  depend,  more  upon  the 
mechanical  strength  of  the  reader's  memory,  than 
upon  the  exercise  of  his  understanding.  But  it 
has  been  left  on  record,  by  the  highest  legal  au- 
thority, that  '  the_law  is  unknown  to  him,  who 
kjipweth  ,jiot  the  REASON  thereof.'  An  axiom, 
which  cannot  fail  to  command  the  assent  of  every 
intelligent  mind. 

As  the  English  system  of  pleading  is,  in  general, 
the  basis  of  that  of  our  country ;  the  former  has,  in 
the  following  Treatise,  been  followed  exclusively, 
without  regard  to  any  peculiarities  in  the  latter, 
excepting  a  very  few  references  to  those,  which 
exist  in  the  law  of  my  native  State. 

Knowing  well  the  fate,  which  usually  and  justly 
attends  the  apologies  of  authors,  for  the  imperfec- 
tions of  their  published  works,  I  abstain  from  offer- 
ing  any,  for  those  of  the  following  Treatise.  That 

2 


X  PREFACE. 

it  will  be  found,  in  man}7  respects,  imperfect,  I  have 
not  the  vanity  to  doubt.  But  with  all  its  defects 
and  errors — whatever  they  may  be — I  submit  it  to 
the  judgment  of  the  Profession. 

JAMES  GOULD. 

LlTCHFIELD,  (CONN.)  JAN.   1832. 


CONTENTS. 


Chapter  Pagc 

I.  Of  Pleading  in  General,  13 

II.  Of  the  General  Divisions  of  Pleading,  26 

III.  Of  the  General  Rules  of  Pleading,  48 

IV.  Of  the  Declaration,  170 
V.  Of  Dilatory  Pleas,  226 

VI.  Of  Pleas  to  the  Action,  viz.  the  General  Issue, 
and  Special  Pleas  in  Bar — with  Pleas  puls 
darrein  continuance,  302 

VII.  Of  Traverse,  376 

VIII.  Of  Duplicity — Profert  and  Oyer,  and  Depar- 
ture, 419 
IX.  Of  Demurrer,  1.  to  the  Pleadings,  2.  to  Evi- 
dence, 460 
X.  Of  Arrest  of  Judgment,  and  Repleader,            492 


CHAPTER  I. 

OF    PLEADING    IN    GENERAL. 

SECTION    1.      PLEADINGS   are    the  mutual   alter-    CHAP. 
cations  of  the  parties  to  a  suit,  expressed  in  legal        i. 
form,    and    in  civil    actions    reduced    to  writine/a).  

,.  ,    Nature  of 

In  a  more  limited  sense,  however,  '  the  pleadings'  Pleading. 
(in  the  plural}  comprehend  only  those  allegations, 
or  altercations,  which  are  subsequent  to  the  count, 
or  declaration^).  In  England,  these  altercations 
were  anciently  oral;  having  been  offered,  viva 
voce,  by  the  respective  parties  or  their  counsel,  in 
open  court ;  as  is  still,  generally  done,  in  the  plead- 
ings on  the  part  of  the  defendant,  or  prisoner  in 
criminal  prosecutions.  And  hence  it  is,  that  in  the 
Norman  language,  in  which  most  of  the  ancient 
books  of  the  English  law  are  written,  the  pleadings 
are  frequently  denominated  the  parol(c):  Though 
for  centuries  past,  all  pleadings,  in  civil  actions,  have 
been  required  to  be  written.  In  some  instances, 
however,  the  term  parol  is  still  used  to  denote  the 
entire  pleadings  in  a  cause  :  As  when  in  an  action, 
brought  against  an  infant  heir,  on  an  obligation  of 
his  ancestor's,  he  prays  that  the  parol  may  demur ; 

(a)  Com.  Dig.  Pleader,  A.     3  Black.  Com.  293. 

(6)  Com.  Dig.  Pleader,  A.     Reg.  PI.  2.  54.     Lawes'  PI.  1. 

(c)  Ibid.  Lawes'  PI.  App.  80-4.  Bac.  Abr.  Amendment,  &c.  A. 

3 


l^  OF  PLEADING  IN  GENERAL. 

CHAP.    i«  e*  ^at  the  pleadings  may  be  stayed,  till  he  shall 
i.       attain  full  age(W). 

g0.  §  2.  The  mutual  altercations,  which  constitute 
the  pleadings  in  civil  actions,  consist  of  those  formal 
allegations  and  denials,  which  are  offered,  on  one 
side,  for  the  purpose  of  maintaining  the  suit,  and  on 
the  other,  for  the  purpose  of  defeating  it ;  and  which, 
generally  speaking,  are  predicated  only  of  matters  of 
fact. 

§  3.  For  pleading  is,  practically,  nothing  more 
than  affirming  or  denying,  in  a  formal  and  orderly 
manner,  those  facts,  which  constitute  the  ground 
of  the  plaintiff's  demand,  and  of  the  defendant's  de- 
fence^). Pleading,  therefore,  consists  merely  in 
alleging  matter  of  fact,  or  in  denying  what  is  alleged 
as  such  by  the  adverse  party. 

^  4.  But  in  the  theory,  or  science  of  pleading, 
the  averment  of  facts,  on  either  side,  always  presup- 
poses some  principle,  or  rule  of  law,  applicable  to  the 
facts  alleged ;  and  which,  when  taken  in  connexion 
with  those  facts,  is  claimed,  by  the  party  pleading 
them,  to  operate  in  his  own  favor.  For  all  rights 
of  action,  and  all  special  defences,  result  from  mat- 
ter of  fact  and  matter  of  law  combined.  And  hence, 
in  every  declaration,  and  in  all  special  pleading,  some 
legal  proposition  (i.  e.  some  proposition  consisting  of 
matter  of  law),  though  not  in  general  expressed  in 

(d)  3  Black.  Com.  300.     4  East,  485. 

(«)  Bac.  Abr.  Pleas,  &c.  Inlrod.     3  T.  R.  159.     Doug.  159. 


OF  PLEADING  IN  GENERAL.  J 

terms,  by  the  pleader,  (because  the  Court  is  suppos-    CHAP. 
ed  judicially  to  know  it),  is  always,  and  necessarily,        i. 
implied,  or — to  use  the  language  of    grammarians 

7  i  Nature  of 

understood.  Pleading. 

§  5.  For  it  would  be  obviously  to  no  purpose, 
for  either  party  to  state  facts,  of  which  no  principle 
of  law  could  be  predicated  in  his  favor.  Indeed, 
all  that  a  party  submits  to  the  court,  by  alleging 
facts,  is  their  legal  operation  :  And  for  the  purpose 
I  of  deciding  what  their  operation  in  law  is,  the  rule 
pf  law,  in  virtue  of  which  the  pleader  claims  the 
matter  of  fact  alleged  by  himself,  to  be  in  his  fa- 
vor, must  always  be  tacitly  supplied,  or  understood. 

§  6.  By  contemplating  the  subject  in  this  point 
of  view,  we  are  enabled  to  apprehend  the  striking 
propriety  and  full  import  of  Lord  Mansfield's  re- 
mark, that  '  the  substantial  rules  of  pleading  are 
founded  in  strong  sense,  and  the  soundest  and  closest 
logic^/)-  For  those  rules,  when  considered  in  their 
proper  connexions  and  dependencies,  will  be  found 
to  involve  a  connected,  methodized  body  of  PRINCI- 
PLES, constituting  a  complete  and  coherent  system 
of  legal  logic :  A  system,  artificial  indeed  in  its  form 
and  structure  ;  but  admirably  adapted  to  the  impor- 
tant ends  of  simplicity,  uniformity  and  certainty,  in 
the  modes  of  administering  justice. 

^  7.  For  the  purpose  of  explaining  and  illustrat- 
ing this  view  of  the  subject,  we  may  observe,  that 

(/)  1  Burr.  319. 


If!  OF  PLEADING  IN  GENERAL. 

10 

CHAP.  &M  pleading  is  essentially  a  logical  process.]     And 
i.       by  analyzing  a  good  declaration,  or  any  good  special 

pleading,  if  we  take  into   view,  with  what  is  ex- 
Nature  of    •  . 
Pleading,     pressed,  what  is  necessarily  supposed    or  implied  ; 

we  shall  find  in  it  the  elements  of  good  syllogism : 
All  good  pleading  being  in(  substance  a  syllogistic 
process  ;  though  abridged  in  form,  like  some  of  the 
syllogisms  of  the  schools  :  So  that  not  only  every 
good  declaration,  but  all  good  special  pleading  on 
either  side,  in  each  successive  stage  of  the  plead- 
ings, is  essentially  a  good  syllogism. 

§  8.  Thus,  in  an  action,  brought  for  a  trespass 
committed  upon  land,  the  declaration  may  be  pre- 
sented in  the  following  form:  'Against  him,  who 
has  forcibly  entered  upon  my  land,  I  have  a  right, 
by  law,  to  recover  damages  :  But  the  defendant  has 
forcibly  entered  upon  my  land  :  Therefore,  against 
him  I  have  a  right,  by  law,  to  recover  damages.'  In 
the  example  here  given,  the  first  or  major  proposi- 
tion asserts  the  legal  principle,  on  which  the  plain- 
tiff founds  his  claim :  The  second,  or  minor,  alleges 
the  matter  of  fact,  to  which  that  principle  is  to  be 
applied,  in  the  particular  case  :  The  conclusion  is 
the  legal  inference,  resulting  from  the  law  and  fact 
together,  as  they  appear  in  the  premises.  And  the 
judgment  of  the  court,  (if  for  the  plaintiff),  is  a  re- 
affirmance  of  this  conclusion  (g),  together  with  an 
award,  or  sentence  of  recovery  in  pursuance  of  it. 

(g-)  3  Black.  Com.  396. 


r 


OF  PLEADING  IN  GENERAL. 


§  9.     In  the  case  now  stated,  the  plaintiff's  al-    CHAP. 
leged  right  of  recovery  may  be  contested,  by  a  de-       i. 
nial  of  either  of  the  three  propositions,  which  con- 


stitute  his  declaration.  And  as  the  denial  of  either  pleading. 
of  them  is,  in  effect,  a  complete  denial  of  the  plain- 
tiff's whole  claim,  the  defendant  is  not  allowed,  (by 
the  rules  of  the  common  law,)  to  deny  more  than 
one  of  them.  For  if  he  can  successfully  deny  any 
one  of  them  ;  he  will,  by  so  doing,  attain  every  ob- 
ject, which  he  could  have  proposed  in  denying  them 
all. 

§  10.  If,  then,  the  defendant  would  deny  the 
major,  or  first  proposition  above  stated,  which  con- 
sists of  matter  of  law,  he  must  do  it,  by  tendering 
what  is  called  an  issue  in  law  —  which  is  merely  a 
technical  denial  of  some  legal  proposition,  or  suppos- 
ed rule  of  law.  The  minor  or  second  proposition 
in  the  declaration  —  as  it  consists  only  of  matter  of 
fact  —  must  be  denied,  if  at  all,  by  what  the  law 
denominates  an  issue  in  fact  ;  or,  more  strictly  speak- 
ing, by  tendering  an  issue  in  fact  —  which  is  the  legal 
mode  of  denying  by  plea,  what  has  been  alleged,  as 
matter  of  fact,  on  the  other  side(/i).  But  assuming 
the  major  to  be  correct  in  principle,  and  the  minor 
true  in  point  of  fact,  (upon  which  supposition,  nei- 
ther of  them  can  be  successfully  denied)  ;  the  con- 
clusion must  inevitably  follow,  unless  the  defendant 
can  repel  it,  by  alleging  some  new  matter,  (i.  e.  some 
distinct  collateral  fact)  which  is  inconsistent  with 
it,  and  which  therefore  by  consequence  implies  a 

•      (/i)  3  Black.  Com.  396. 


I  8  OF  PLEADING  IN  GENERAL. 

CHAP,    denial  of  it :  There  being  no  form  of  direct  negation, 
i.        in  which  the  conclusion  can  be  distinctly  answered. 

g*!  ^11.  Let  it  be  supposed  then,  that  in  the  case 
just  stated  by  way  of  example,  the  plaintiff's  pre- 
mises are  both  undeniable  ;  but  that  he  has  released 
his  cause  of  action  to  the  defendant,  and  that  the 
release  is  the  particular  fact,  or  new  matter,  upon 
which  the  defendant  relies,  for  defeating  the  suit. 
Under  these  circustances,  the  defendant's  plea,  or 
defence,  if  reduced  to  a  syllogistic  form,  will  stand 
thus  : — '  If  he,  upon  whose  land  I  have  forcibly  en- 
tered, releases  to  me  his  right  of  action  for  such 
entry ;  he  has  thenceforth  no  right  by  law  to  re- 
cover damages  for  it,  against  me  :  But  the  plaintiff 
has  released  to  me  his  right  of  action,  for  my  entry 
upon  his  land  :  Therefore  he  has,  by  law,  no  right 
to  recover  damages  for  that  cause,  against  me.' 

^12.  To  this  defence  the  plaintiff  has  now,  in 
?  his  turn,  a  right  to  reply,  by  denying  either  of  the 
three  propositions,  advanced  by  the  defendant.  But 
if  he  admits  both  of  the  defendant's  premises ;  or  if, 
as  we  are  now  assuming,  he  cannot  successfully 
deny  either  of  them ;  his  suit  must  of  course  fail, 
unless  he  can  destroy  the  defendant's  conclusion,  by 
some  new  matter  of  fact,  which  will  be,  in  legal 
effect,  a  denial  of  it. 

%  13.  For  the  purpose  then  of  carrying  this  pro- 
cess one  stage  further,  let  us  suppose  that  the  re- 
lease, pleaded  by  the  defendant,  was  extorted  from 


OF  PLEADING  IN  GENERAL.  ]£ 

the  plaintiff,  by  duress;  and  that  this  fact  is  the  new    CHAP. 
matter,  by  which  the  plaintiff  proposes  to  overthrow        i. 

the   defendant's  conclusion.      The    plaintiff's   reply  

may,  upon  this  state  of  facts,  be  resolved  into  the  pleading. 
following  syllogism  : — '  A  release  extorted  from  me, 
by  duress,  does  not  in  law  destroy  any  pre-existing 
right  of  mine,  to  recover  damages  :  But  the  release, 
pleaded  by  the  defendant,  was  extorted  from  me  by 
duress :  Therefore,  that  release  does  not  destroy  my 
right  by  law  to  recover  damages  against  him.' 

§  14.  It  is  now  necessary  for  the  defendant,  if 
he  persists  in  denying  the  plaintiff's  claim,  to  contest 
this  reply  ;  and  this  he  may  do,  by  denying  either  of 
the  three  propositions,  of  which  it  consists.  But  as-  Post.  ch. 

2  5  23. 

suniing,  as  in  the  preceding  stages  of  this  illustra- 
tion, that  neither  of  the  premises  can  be  safely  de- 
nied, the  consequence  must  be,  that  the  plaintiff  will 
prevail,  unless  the  defendant  can,  on  his  part,  allege 
some  further  new  matter,  which  may  destroy  the 
plaintiff 's  conclusion.  And  the  pleading  of  such  new  , 
matter,  of  whatever  facts  it  may  consist,  will  con-  l 
tain  the  elements  of  another  syllogism — which  the 
plaintiff  will  be  at  liberty  to  answer,  by  another  still ; 
and  the  same  syllogistic  process  may  be  repeated,  by 
the  parties,  alternately  as  long  as  there  remains  new 
matter  to  be  alleged  on  either  side. 

^15.  For,  that  both  parties  may  respectively 
have  the  full  benefit  of  pleading  whatever  the  na- 
ture and  exigencies  of  the  case,  on  their  respective 
sides,  may  require,  it  is  obvious  that  each  must  be 


20  OF  PLEADING  IN  GENERAL. 

CHAP.    at  liberty  to  answer  the  allegations  made   against 

i.       himself,  by  denying,  at  his  election,  either  of  the 

— ; three   propositions   contained   in   those  allegations : 

Pleading.  In  other  words,  each  party  must  be  at  liberty  to 
deny  whatever  he  considers  as  false,  either  in  law, 
fact,  or  inference,  in  his  adversary's  pleading.  Each 
party,  therefore,  has  a  right  to  allege  new  matter,  in 
any  stage  of  the  pleadings,  as  long  as  he  has  occa- 
sion to  answer  new  matter — i.  e.  as  long  as  such 
matter  is  alleged  against  him.  And  thus  the  right 
of  electing  between  the  three  regular  modes  of  meet- 
ing his  adversary's  allegations,  is  continued  to  each 
party,  until  one  of  the  premises  in  the  pleading  on 
one  side,  is  directly  denied  on  the  other  ;  or  (to  sub- 
stitute legal,  for  scholastic  language,)  until  the  plead- 
ings terminate  in  the  tender  of  a  proper  issue,  in  law 
or  in  fact. 

^  16.  An  issue,  of  either  kind,  precludes  the  al- 
i  legation  of  further  new  matter  on  either  side,  and 
thus  regularly  closes  the  pleadings(^).  For  before 
any  issue  can  be  tendered,  both  parties  will  neces- 
sarily have  an  opportunity  to  allege  whatever  the 
nature  of  the  case,  on  either  side,  may  require. 
And  as  the  whole  controversy,  which  is  the  subject- 
matter  of  the  pleadings,  is,  by  the  issue,  reduced  to 
some  one  point  of  fact  or  law  ;  no  necessary  or  use- 
ful purpose  can  be  attained,  by  carrying  the  plead- 
ings further.  For  the  question,  upon  which  the 
contest  depends,  is  now  distinctly  presented  by  the 
issue,  and  ripe  for  determination.  And  it  only  re- 

(t)  Co.  Litt.  126.  a.     3  Black.  Com.  314. 


OF  PLEADING  IN  GENERAL.  21 

mains  for  the  court,  or  the  jury,  to  decide  the  point    CHAP. 
in  issue,  and  for  the  former  to  render  judgment.     If        i. 
the  issue  be   taken  upon  matter  of  law,  it  is  to  be  

ill  '  f  f    f  •       Nature  of 

determined  by  the  court — if  upon  matter  of  fact,  it  Pleading. 
is,  in  general,  though  not  universally,  to  be  tried  by 
the  jury :  It  being  the  province  of  the  former  to  de- 
cide questions  of  law,  and  of  the  latter,  ordinarily,  to 
ascertain  matters  of  fact(k).  And  the  issue,  whe- 
ther in  law  or  fact,,  being  decided,  the  judgment  of 
the  court,  which  is  merely  the  sentence  of  the 
law(/),  deduced  from  the  facts  ascertained,  must 
follow  in  favor  of  that  party  who  appears,  from 
the  whole  record,  entitled  to  it. 

^17.  From  this  very  general  outline,  it  will  be 
apparent  that  all  pleading  is  a  logical  process.  And 
the  great  object  of  the  process  is  to  facilitate  the 
administration  of  justice,  by  simplifying  the  grounds 
of  controversy,  and  ultimately  narrowing  down  the 
contest  to  a  single  and  direct  affirmative  and  nega- 
tive— i.  e.  to  some  definite  point  of  law  or  fact, 
affirmed  on  one  side,  and  denied  on  the  other. 

&  18.     By  special  pleading,  is  meant  the  allega^  Special 

•     '        f  •    1  T      •  •    i       i    r  pleading. 

tion  of  special  or  new  matter,  as  distinguished  from  a 
direct  denial  of  matter  previously  alleged  on  the  op- 
posite side. 

^19.  The  matter  of  fact,  which,  in  the  preced- 
ing illustration,  constitutes  the  subject  of  the  minor 
proposition,  is,  in  the  established  forms  of  pleading, 

(&)  3  Black.  Com.  315.  (/)  Ib.  396. 

4 


22  OF  PLEADING  IN  GENERAL. 

CHAP,    always   expressly   alleged :    Since    the  facts,   upon 

i.       which  the  complaint  or  defence  is  founded,  are  sup- 

posed  to  be  unknown  to  the  judges.     The  conclu- 

Nature  of  .1  •    j  '*.•  •  11      •  •   *i 

Pleading,  sion,  or  third  proposition,  in  the  syllogistic  process, 
is  also  expressed,  in  the  existing  mode  of  pleading, 
either  by  the  demand,  which  the  plaintiff  makes  of 
damages,  debt,  or  other  thing,  on  the  one  hand, 
or  by  defendant's  prayer  of  judgment  against  the 
plaintiff,  on  the  other.  For  it  cannot  appear,  from 
facts  stated  alone,  what  benefit  the  pleader  proposes 
to  claim  from  them  ;  and  he  can,  therefore,  derive 
from  them  no  advantage  which  he  does  not  claim 
from  them,  in  his  pleading. 

^  20.  But  as  has  been  already  suggested(w), 
the  principle,  or  rule  of  law,  of  which  we  have  re- 
presented the  major  proposition  to  consist,  (and 
which,  according  to  ancient  usage,  was,  in  certain 
cases,  always  recited,  or  formally  alleged  by  the 
pleader)  (n),  is  now,  in  general,  not  actually  expres- 
sed in  the  pleadings,  in  any  form.  For  the  judges, 
whose  province  it  is  to  decide  upon  the  legal  suffi- 
ciency of  all  pleadings,  are  presumed  to  know  judi- 
cially, what  the  law,  upon  any  given  or  alleged 
state  of  facts,  is  :  and  the  nature  of  the  facts,  actu- 
ally alleged  on  either  side,  taken  in  connexion  with 
the  demand  laid  in  the  declaration,  and  with  the 
prayer  of  judgment,  in  the  subsequent  pleadings, 
will,  in  every  case,  and  with  perfect  certainty,  indi- 
cate the  supposed  rule  of  law  upon  which  the 
pleader  relies,  as  his  major  proposition.  And  in  this 

(MI)  Ante,  §  4.  (»)  Post.  Chap.  2. 


OF  PLEADING  IN  GENERAL.  23 

manner,  that   proposition,  though  not  expressed   in    CHAP. 
terms,  is  necessarily  understood  and  tacitly  suppli-       i. 
ed. 


Nature  of 
Pleading. 


§21.  Thus,  in  the  example  already  given,  of  a 
declaration  in  trespass,  the  plaintiff,  in  alleging  that 
the  defendant  has  forcibly  entered  upon  his  land,  and 
demanding  damages  for  that  cause,  assumes  and 
tacitly  asserts  the  general  principle,  that  he,  upon 
whose  land  such  an  entry  has  been  made,  has  a  right 
by  law  to  recover  damages  against  him  who  made 
it.  For  unless  that  principle  of  law  were  tacitly  sup- 
plied, or  presupposed,  the  averment  of  the  defend- 
ant's entry,  and  the  demand  of  damages,  which  fol- 
lows it  in  the  declaration,  would  be  altogether  un- 
meaning and  nugatory  :  Since  no  right  of  action 
could  result  from  the  defendant's  act,  if  no  such  legal 
principle  existed. — And  this  principle,  or  the  proposi- 
tion which  would  express  it,  is  as  clearly  indicated 
by  the  matter  of  fact  alleged,  and  the  demand  made 
in  the  declaration,  and  may  therefore  be  as  easily 
apprehended  and  applied,  as  if  it  had  been  expressly 
and  formally  stated. 

§  22.  The  object,  thus  far  proposed,  has  been  to 
exhibit  a  general  analysis  of  the  law  of  pleading, 
considered  as  a  science,  or  system  of  principles.  And 
though  the  scholastic  terms  and  forms,  which  have 
been  introduced  for  this  purpose,  are  unknown  in 
the  established  language  and  practice  of  pleading ; 
yet  the  essential  properties  and  the  results  of  the 
preceding  syllogistic  process,  though  differently  ex- 


OF  PLEADING  IN  GENERAL. 


24 

CHAP,    pressed,  are  in  effect  the  same  as  those  of  the  less 
i.        scholastic  modes  of  pleading,  adopted  by  the  com- 
mon  law. 


Nature  of 
Pleading. 


^  23.  Thus,  an  issue  in  law  which,  in  the  fore- 
/  going  analysis  is  called  a  denial  of  the  major  propo- 
sition of  the  adverse  party,  is  described  in  legal  lan- 
guage, as  an  admission  of  the  facts  alleged  by  that 
party,  but  a  denial  of  their  legal  operation  in  his  fa- 
vor. These  different  terms  however  express,  in 
effect,  one  and  the  same  thing — or  rather,  the  op- 
eration thus  differently  described,  is  essentially  one 
and  the  same. 

^  24.  Thus  also,  the  new,  or  special  matter, 
which  in  the  foregoing  analysis  is  called  a  denial  of 
the  adverse  party's  conclusion,  is,  in  legal  language, 
denominated  matter  of  avoidance — i.  e.  matter 
which,  admitting  both  of  the  other  party's  premises, 
avoids  or  repels,  in  the  particular  case  in  question, 
the  consequence,  or  inference,  which  would  otherwise 
result  from  them.  And  that  inference  is,  univer- 
sally, the  syllogistic  conclusion  in  the  adverse  party's 
pleading,  if  his  pleading  be  reduced  to  a  syllogism. 
It  is  therefore  manifest,  that  matter  of  avoidance, 
and  matter  which,  in  the  syllogistic  formula,  goes 
in  denial  of  the  adverse  party's  conclusion,  are  in 
substance  one  and  the  same  thing. 

§  25.  In  concluding  this  introductory  chapter,  it 
may  be  proper  to  observe,  that  the  forms  of  scholas- 
tic logic,  employed  in  the  preceding  pages,  have 


OF  PLEADING  IN  GENERAL. 


25 

been  introduced  for  the  purpose  of  resolving  the  law    CHAP. 
of  pleading  into  its  constituent  principles:     A  pro-        i. 
cess  which  has   been  deemed  conducive  to  a  correct 


,  .,  .    .  r     i  •     •  Nature  of 

and  systematic  exhibition  or  the  original  and  essen-  Pleading. 
tial  nature  of  all  pleading.  And  as  those  forms  are 
more  simple,  and  exact,  than  any  other  mode  of 
analysis,  of  which  the  subject  would  admit ;  they 
have  been,  of  course,  thought  better  adapted  than 
any  other  to  the  end  proposed. 


CHAPTER  II. 

OF    THE    GENERAL    DIVISIONS    OF    PLEADING. 

CHAP.        SECTION  1.     UNDER    this    head    it  may  be  pre- 

n<       mised,  that  the  original  writ,  which  forms  the  first 

~  stage  of  a  suit  at  law,  and  is  the  foundation  of  all 

The  writ. 

the  subsequent  proceedings  in  it,  is  no  part  of  the 
pleadings;  since  it  does  not  consist  of  the  allega- 
tions, and  is  not  the  act,  of  either  party ;  but  is  a 
mandatory  precept  (I),  issued  by  the  authority,  and 
in  the  name  of  the  sovereign  or  the  state,  for  the 
purpose  of  compelling  the  appearance  of  the  defend- 
ant before  the  court,  to  which  it  is  returnable,  that 
he  may  there  make  answer  to  the  plaintiff's  com- 
plaint^). The  general  nature  of  the  plaintiff's  de- 
mand is,  indeed,  mentioned  in  the  writ — that  the 
defendant  may  know,  before  he  appears  in  court,  to 
what  kind  of  complaint  he  is  required  to  answer ; 
but  the  particular  cause  of  action — the  specific 
wrong  or  breach  of  contract  complained  of — does 

(a)  3  Black.  Com.  273.     1  Tidd,  93. 

(1)  In  England,  the  writ  is  directed  only  to  the  sheriff'  of  the 
county,  in  which  (he  cause  of  action  is  alleged  to  have  arisen :  In 
the  practice  of  some  of  the  American  states,  it  is  directed  to  ei- 
ther of  several  ministers  of  the  law — as  the  sheriff,  his  deputy,  or 
a  constable. 


GENERAL  DIVISIONS  OF  PLEADING.  27 

not  appear,  until  the  declaration   is  filed (6)  (2).     But    CHAP. 
though  the  writ  is  no  part  of  the  pleadings,  it  may,        n. 

for  various  causes,   be  excepted  to  and  destroyed,  

by  pleading  :  As  for  the  want  of  any  legal  requisite, 
or  in  general,  for  any  irregularity,  informality  or 
mistake. 

^  2.  The  suit  commences,  from  the  issuing  of  Post.ch.4. 
the  original  writ ;  and  if  the  writ  bears  a  fictitious 
date  ;  the  true  time  of  its  issuing  may  be  proved, 
whenever  the  time  is  material,  and  the  ends  of  jus- 
tice require  that  the  time  of  its  actually  issuing  be 
shown  (c). 

5>  3.     The  pleadings,  in  a  civil  suit,  commence  First  stase 

'  of  the 

with  the   declaration,  or  count  (a} :  The  word  plea,  pleadings. 

•    The  count. 

(placituni)  being  a  generic,  or  collective  term,  com- 
prehending all  the  allegations,  made  on  either  side, 
in  the  various  stages  of  pleading(^)  ;  though,  in  a 
more  limited  and  appropriate  sense,  the  term  plea, 
in  the  singular,  is  used  to  denote  the  first  plea,  or 

(b]  Bac.  Abr.  Actions  in  Gen.  C.     1  Tidd,  96. 

(c)  2  Burr.  962-6.     Cowp.  454.     3  Black.  Com.  273.  285.  7 
T.  R.  4.     1  Wils.  147. 

(a)  3  Black.  Com.  393. 

00  Carth.  334.     Skinn.  554.     1  Saund.  338,  n.  6. 

(2)  It  will  be  perceived  that  all  civil  suits  are  supposed,  in  the 
text,  to  be  commenced  by  original  writ.  In  the  modern  practice 
of  the  courts  of  Westminster,  however,  there  are  modes  of  com- 
mencing actions  without  an  original  writ.  But  a  delineation  of  the 
different  means  of  instituting  suits  belongs  to  the  title  of  Practice. 


23  GENERAL  DIVISIONS  OF  PLEADING. 

CHAP,    answer  made  by  the  defendant,  to  the  declaration  or 
ii.       the  writ(e). 

§  4.  The  declaration  is  a  statement  at  large  of 
the  cause  of  action,  (of  which  the  writ  gives  only  a 
general  description)  ;  or — as  it  is  usually  denominat- 
ed— an  amplification,  or  exposition,  of  the  original 
writ,  with  the  addition  of  the  time  when,  and  the 
place  where,  the  cause  of  action  arose,  and  of  all 
necessary  circumstances(/}. 

Defendant's       k  5.     The  pleadings,  which  succeed  the  declara- 

plea.  . 

tion,  begin  with  the  defendant's  plea  :  For  the  writ 
being  returned,  and  the  plaintiff's  complaint  being 
presented  in  full ;  it  is  incumbent  on  the  defendant, 
within  a  reasonable  time,  to  make  defence,  and  put 
in  an  answer  or  plea ;  as  judgment  must  otherwise 
go  against  him,  by  default  or  nil  dicit(g).  For  if 
he  fails  to  make  answer,  within  the  time  required  by 
the  rules  of  practice  ;  he  impliedly  confesses  the 
truth  of  the  complaint  (/i). 

^  6.  But  as  introductory  to  the  plea,  the  defend- 
ant must,  in  general,  make  defence ;  which  is  of  two 
kinds,  called  full  defence,  and  half  defence.  The 
term  '  defence '  signifies,  in  the  language  of  pleading, 
not  a  justification,  but  resistance  or  denial;  as  is  very 
manifest  from  the  established  form,  in  which  defence 

(e)  3  Black.  Com.  299.  301. 

(/)  Co.  Lilt.  303,  b.  3  Black.  Com.  293.  Bac.  Abr.  Pleas, 
&c.  B.  1. 

(g)  3  Black.  Com.  296.  (h)  1  Stra.  612. 


GENERAL  DIVISIONS  OF  PLEADING.  29 

is  made.     That  form — when  the  defence  is  full,  and    CHAPi 
expressed    in    full — is    the    following; — 'And    the        n. 

said   C.  D.'  (the  defendant),  'by  E.  F.  his  attorney,  

comes,  and  defends  the  wrong  and  injury,  (or  force  E 
and  injury),  when  and  where  it  shall  behove  him, 
and  the  damages,  and  whatsoever  else  he  ought  to 
defend'(i).  Now  it  would  be  absurd  to  suppose 
that  the  defendant,  in  saying  that  he  '  defends'  the 
wrong  and  injury,  is  to  be  understood,  as  justifying 
them — not  only  because  a  wrong  cannot,  in  the  na- 
ture of  the  thing,  admit  of  justification ;  but  also, 
because  the  defendant  may,  with  legal  consistency, 
as  he  frequently  does,  subjoin  at  the  close  of  his  de- 
fence, a  denial  of  what  the  plaintiff  complains  of  as 
a  wrong(X>. 

5j  7.  In  writs  of  entry  also,  when  no  injury  is  al- 
leged, and  when  of  course  none  can  be  denied  (as 
the  demandant  states  only  his  own  right,  and  the  de- 
fective title  of  the  tenant,  or  defendant,  without 
complaining  of  any  wrong),  the  tenant  defends  the 
demandants  right.  And  in  writs  of  right,  the  tenant, 
for  the  same  reason,  always  defends  the  right  and 
seisin  of  the  demandant(/c)  :  Examples,  which  de- 
cisively show  that  the  meaning  of  the  word  defence, 
in  pleading,  is  that  which  has  now  been  assigned 
to  it. 

(t)  Bac.  Abr.  Pleas,  &c.  D.     Co.  Litt.  127,  b.  Lawes'  PI.  89. 
2  Chitt.  PI.  409.     2  Saund.  209,  c. 
(,/  )  3  Black.  Com.  297. 
(k)  Ibid. 

5 


GENERAL  DIVISIONS  OF  PLEADING. 


CHAP.        §  8.     It  is  obvious  then,  that  to  make  defence  is 
ii.      to  resist  the  plaintiff's  suit  ;  the  reasons  or  grounds 
of  which  resistance  must  appear  in  the  plea,  which 


Defence. 


§  9.  Half  defence,  in  the  form  in  which  it  was 
anciently  distinguished  from  full,  is  thus  expressed  : 
1  And  the  said  C.  D.  by  E.  F.  his  attorney'  (or  'in 
his  own  proper  person),  comes,  and  defends  the  force 
(or  wrong)  and  injury'  —  omitting  the  sequel,  in  the 
above  form  of  full  defence.  (/). 

§10.  Half  defence  is  adapted  to  pleas,  which 
deny  the  jurisdiction  of  the  court,  or  the  legal  com- 
petency of  the  plaintiff  to  prosecute.  Full  defence  is 
an  implied  waiver  of  these  two  preliminary  excep- 
tions ;  because,  by  defending  '  when  and  where  it 
shall  behove  him',  the  defendant  is  considered  as 
impliedly  acknowledging  the  jurisdiction  of  the  court  ; 
and  by  defending  '  the  damages,  and  whatsoever  else 
he  ought  to  defend,'  he  is  deemed  virtually  to  admit 
the  plaintiff's  competency  to  sue(m). 

§11.  Full  defence,  however,  is  adapted,  it  seems, 
to  all  other  pleas  than  those  last  mentioned.  But 
to  any  other  pleas  than  those,  half-defence  is  not 
apposite;  and  consequently,  half  defence,  when 
coupled  with  a  plea  of  any  other  kind,  is  fatal  to 

(/)  Co.  Litt.  127.  2  Saund.  209,  c.  n.  Bac.  Abr.  Pleas,  &c. 
D.  2  Chitt.  PI.  409. 

(in)  Com.  Dig.  Abatement,  I.  16. 

-I^U.  ^f^  Cfr/.  CtM*wt  fafa 

7Uxl>ui  JJitlAArr-   A  fan****' 


GENERAL  DIVISIONS  OF  PLEADING.  g 

it(w).    For  such  defence  impliedly  waives  all  excep-    CHAP. 
tions,   other    than  those,    to  which  the    two  pleas       n. 
above  mentioned  are  adapted ;  and  is  therefore  in- 
consistent  with  all  others.  e&ctsck. 

^12.  As  to  the  difference,  between  the  offect  of 
full  and  of  half  defence,  there  is,  however,  some 
contradiction  and  confusion,  in  the  books.  Accord- 
ing to  some,  full  defence  would  seem  to  be  improper 
for  a  dilatory  plea,  of  any  kind(o).  The  distinc- 
tion above  expressed  appears,  however,  to  be  the 
established  one. 

§13.  Much  importance  was  formerly  attached 
to  these  different  modes  of  making  defence  ;  and 
any  deviation  from  that  form,  which  the  nature  of 
the  plea  required,  gave  occasion  to  many  critical 
and  subtle  exceptions.  These  exceptions,  however, 
being  merely  technical,  were,  at  a  subsequent  period, 
much  discountenanced,  and  now  seldom  or  never 
occur.  For  though  the  distinction  between  full  and 
half  defence  still  exists  theoretically;  yet  the  forms, 
by  which  they  were  originally  distinguished,  and 
which  have  already  been  recited,  have  lost  their 
practical  importance,  by  becoming  obsolete  :  Since, 
according  to  modern  usage,  neither  of  those  precise 
forms  is  employed  ;  but  the  defendant,  by  ,adding  to 
the  ancient  form  of  half-defence,  as  before  recited, 

(n)  Co.  Litt.   127,  b.     Bac.   Abr.  Pleas,  &c.  D.     Lawes'  PI. 
90.     3  Lev.  240. 

(0)  Com.  Dig.  Abatement,  I.  16. 


<£9  GENERAL  DIVISIONS  OF  PLEADING. 

CHAP,    merely    the    words    '  when,    &c.'    is    at    liberty    to 
ii.       connect  it  with  either   species  of  plea  :     The   '  &LC.' 

being  construed   to  imply  either  full  or  /w//"  defence, 

as  the  subject  matter  of  the  plea  may  require Q/). 

^14.  It  must  be  acknowledged,  however,  that 
the  rules,  relating  to  the  forms  of  defence  in  pleading, 
are  very  artificial,  not  to  say  arbitrary.  It  is,  at 
least,  very  difficult  to  discover  on  what  original 
principle.,  defence  of  either  kind  is,  or  ever  was, 
necessary  :  Since  it  amounts  only  to  an  indefinite 
introductory  suggestion  of  what  must,  afterwards, 
appear  distinctly  in  the  plea.  Indeed,  in  certain 
actions,  in  which  force  and  injury  are,  and  must  be, 
alleged,  viz.,  in  trespass  for  an  assault,  or  for  break- 
ing the  plaintiff's  close,  no  defence  is  required, 
merely  because  the  ancient  precedents  contain  none, 
in  either  of  those  two  classes  of  cases(<y).  Yet,  if 
the  essential  principles  of  pleading  required  defence 
to  be  made,  in  any  case,  it  would  seem  as  necessa- 
ry in  those  particular  actions,  as  in  any  other. — But 
however  this  may  be,  want  of  defence,  when  re- 
quired by  the  foregoing  rules,  is  still  regarded  as  a 
defect,  though  only  as  a  defect  in  form(r). 

§15.  It  is  almost  unnecessary  to  observe,  that 
in  a  less  technical  sense,  the  word  '  defence'  is  used, 
as  well  in  legal  as  in  popular  language,  to  signify 
— not  a  clause  or  form,  in  pleading — but  the  sub- 

(p)  8  T.  R.  633.   Willes,  40.   2  Saund.  209,  c.  (n).   Lavves'  PI. 
92.  2Chitt.  PI.  409,  (n.  o .}-Cont,  Sty.  273.    3  Black.  Coin.  298. 
(q)  Bac.  Abr.  Pleas,  &c.  D.     Lawes'  Pi.  90-91. 
(r)  3  Salk.  271.     hawes'  PI.  92. 


GENERAL  DIVISIONS  OF  PLEADING.  3 

ject  of  the  plea.     Thus,  if  to  an  action  on  contract,    CHAP. 
the    defendant   pleads   infancy,    or    to    an    action  of       n. 
trespass,   a  license  ;    infancy,  in   the    one   case,   and  r 
a  license,  in  the  other,  is  called  the  defence. 

^  16.     But   before   the  defendant  is  required  to 

. 

plead,  he  is,  according  to  ancient  practice,  regularly 
entitled,  on  his  prayer  for  that  purpose,  to  an  im- 
pcniance,  or  licentia  loqiiendi  :  A  term  which,  in  its  • 
primitive  sense,  (being  derived  from  the  French 
word  purler,  to  speak)  signifies  an  allowance,  to  the 
defendant,  of  time  to  talk  or  confer  with  the  plain- 
tiff, for  the  purpose  of  bringing  the  controversy,  if 
the  parties  can  agree,  to  an  amicable  termina- 
tion^). But  an  allowance  to  either  party,  of  time 
to  answer  his  adversary,  (as,  to  reply,  rejoin,  &LC.)  is, 
in  the  more  comprehensive  sense  of  the  word,  called 
an  imparlance(f).  In  its  present  more  usual  sig- 
nification, '  importance'  is  an  allowance,  to  the  de- 
fendant, of  time  to  plead(u).  Though  at  this  day, 
time  for  pleading  is,  in  most  cases,  allowed  according 
to  certain  established  rules  of  practice,  without  the 
formality  of  an  impa/rlancefy). 

§  17.     Imparlances  are  of  three  kinds,  of  which  Kinds,  and 
the  first  is  called  general — the  second,  special — and 
the  third,  general-special,  or  (according  to  Sir  Wil- 

(*)  3  Black.  Com.  299.     Id.  App.  Ill,  s.  6. 
(<)   Com.  Dig.  Pleader,  D.  1.     1  Tidd,  417. 
(«)    1  Tidd,  417.     2  Mod.  62. 
(»)   1  Tidd.  417,  420-1.     1  Wils.  154. 


34  GENERAL  DIVISIONS  OF  PLEADING. 

CHAP.  liam  Blackstone),  more  special(w).  A  general  im- 
ii.  parlance  is  one,  granted  upon  a  prayer,  in  which  the 
defendant  reserves  to  himself  no  exceptions  ;  and  im- 
parlances  of  this  kind  are  always  from  one  term  to 
another(V)  :  Whereas  special,  and  general-special 
imparlances  may  extend  only  to  a  future  day,  in  the 
same  term,  in  which  they  are  granted (y).  After  a 
general  imparlance,  the  defendant  can  plead  only  to 
the  merits,  or,  in  legal  phrase,  to  the  action  ;  and  is, 
of  course,  precluded  from  pleading  to  the  jurisdic- 
tion of  the  court,  the  disability  of  the  plaintiff  to 
sue,  or  the  form  of  the  writ(z).  For  by  asking 
leave  to  imparl,  without  reserving  any  right  of  ex- 
ception, in  any  of  these  particulars,  he  tacitly 
acknowledges  the  jurisdiction  of  the  court,  and 
waives  all  objections,  which  do  not  go  to  the  right 
of  action. 

^18.  An  imparlance  is  said  to  be  special,  when 
the  prayer,  upon  which  it  is  granted,  contains  the 
clause,  *  saving  to  himself  all  advantages  and  ex- 
ceptions, as  well  to  the  writ,  as  to  the  declaration 
aforesaid'(ct)  (3).  After  an  imparlance  of  this  kind, 
the  defendant  is  at  liberty  to  plead,  as  well  in  abate- 

(w)   1  Tidd,  417.     3  Black.  Com.  301.     Lawes'  PI.  94. 

(x)   1  Tidd,  417.     6  Mod.  28.     Lawes'  PI.  94. 

(y)  Com.  Dig.  Pleader,  D.I.     1  Tidd,  417. 

(z)  3  Black.  Com.  301.     Tidd,  418.     1  Mass.  R.  347. 

(a)  2  Chitt.  PI.  407-8.     2   Saund.  2.  (n.  2.)     Lawes'  PI.  94. 

(3)  If  the  suit  was  commenced  by  bill,  the  saving  should  be 
'  of  all  advantages  and  exceptions  to  the  said  bill.' 


GENERAL  DIVISIONS  OF  PLEADING.  35 

ment  as  to  the  action;  i.  e.   to  offer,  in  his  plea,    CHAP. 
exceptions  either  to  the  writ  or  the  count (6).     For       n. 
the  benefit  of  all  such  exceptions  is  reserved  to  him, 
by  the  granting  of  his  prayer,  in  which  there  is  an 
express  reservation  of  them.     But  he  cannot,  after  e 
a  special  imparlance,  plead  to  the  jurisdiction  of  the 
court. (c)     For  exceptions  to  the  jurisdiction  are  not, 
in  this  case,  among  those  reserved  in  the  defendant's 
prayer  for  leave  to  imparl ;  and  the  act  of  praying 
such  leave,  without  saving  exceptions  to  the  jurisdic- 
tion, is  an  implied  admission  of  it. 

^19.  A  general-special  imparlance  is  one  in 
which  the  defendant  reserves  '  all  advantages  and 
exceptions  whatsoever \<T).  This  kind  of  imparlance 
not  only  leaves  the  defendant  at  liberty  to  plead 
whatever  he  might  have  pleaded,  under  a  special 
imparlance,  but  does  not  preclude  him  from  plead- 
ing to  the  jurisdiction  of  the  court(e.)  For  as  the 
prayer  for  leave  to  imparl  expressly  reserves  all 
exceptions ;  such  as  go  to  the  jurisdiction  are  of 
course  reserved,  as  well  as  others.  He  cannot, 
however,  after  an  imparlance  of  either  kind,  plead  a 
tender,  with  a  touts  temps  prist,  (an  averment  that 
he  was  always  ready  to  pay)  :  For  by  asking  de- 
lay— as  he  does,  by  praying  for  leave  to  imparl,  he 
practically  admits  that  he  is  not  then  ready  to  pay 
what  the  plaintiff  demands  ;  and  thus  his  prayer  for 
leave  to  imparl  would  falsify  the  plea(y). 

(6)  1  Tidd.  418.     Lawes'  PI.  94.  (c)  Id. 

(d)  2  Chitt.  PI.  408.  (e)  1  Tidd,  418.      1  Lev.  54. 

(/)  1  Tidd,  418.     2  Salk.  622.     2  Mod.  62.     Reg.  PI.  56. 


6  GENERAL  DIVISIONS  OF  PLEADING. 

CHAP.         §  20.     If    the    defendant,    after   an    impavlance, 
ii.       pleads  any  thing,  which   the    imparlance    waives   or 

falsifies ;    the   plaintiff  may   sign  judgment  against 

™cea-~  him,  as  for  want  of  a  plea(g).  For  a  plea,  pleaded 
ffect a0nf!  out  of  the  regular  course  or  order  of  pleading,  may 
be  treated  as  a  nullity.  Or,  instead  of  signing  judg- 
ment, the  plaintiff  may,  in  such  a  case,  move  the 
court  to  set  aside  the  plea  as  being  irregular(A)  ; 
or  he  may  demur  to  it(i)  ;  for  the  matter  pleaded, 
whatever  it  may  be,  appears  upon  the  face  of  the 
record  to  be  ill  pleaded  :  Or  finally,  he  may  spe- 
cially reply  the  imparlance,  by  way  of  estoppel(j)  ; 
i.  e.  by  showing  in  his  replication,  that  the  defend- 
ant is  precluded,  by  his  own  act  apparent  upon  the 
record  from  availing  himself  of  the  matter  alleged 
in  his  plea.  For  whenever  a  party,  in  pleading, 
contradicts  what  he  has  before  alleged  or  admitted 
upon  the  record,  his  previous  allegation  or  admis- 
sion, may  be  pleaded,  as  conclusive  against  him. 
But  if  the  plaintiff,  instead  of  taking  any  of  these 
advantages,  answers  the  matter  of  the  plea ;  it  will 
stand  as  if  pleaded  without  an  imparlancef&J. 
For  by  omitting  to  object  to  it  as  irregular,  or  out 
of  course,  he  waives  all  exceptions  to  it,  in  these 
particulars  ;  or  in  other  words,  all  exceptions  to  its 
admissibility. 

(g)  1  Tidd,  419.     4  T.  R.  520.     7  Id.  447.  note(d). 
(/i)  6  T.  R.  373. 

(«)  1  Wils.  261.     1  Black.  R.  51.     6  T.  R.  369.     2  Bos.  & 
Pul.  384.     2  M.  &  S.  484. 

(j)  1  Tidd,  419.  (fc)  1  Vent.  236. 


GENERAL  DIVISIONS  OF  PLEADING.  37 

^21.     When  an  action  is  founded  upon  a  deed,      fIAP* 
pleaded  with  a  *profcrt  in  curia,  (an  averment  that 
the  plaintiff  brings  the  deed   into  court),  the  defend-  over. 
ant,  before   he  can  be   required   to  plead,  is  entitled, 
(upon  demanding  it,)  to  oyer  of  the  instrument ;  i.  e. 
according   to   the   original  meaning  of  the   word,  to 
hear  it  read(/)  :  Though  the  immediate  object,  now 
proposed  in  demanding  oyer  of  a  deed,  is  to  obtain 
a  copy  of  it,  to  which  the  defendant  is   entitled  of 
course(w?).     But  as  the  subject  of  oyer  must  be  dis- 
tinctly   examined    hereafter,   all   further  explanation  Post.  ch.  s- 
of  it  is  for  the  present  omitted, 

§  22.  These  preliminary  proceedings  on  the  part  Defcnd- 
of  the  defendant,  being  had,  it  is  incumbent  on  him 
to  put  in  his  plea(ii)  ;  in  which,  if  he  has  waived  no 
legal  exception,  he  may  either  contest  the  merits  of 
the  plaintiff's  demand,  or  except  to  the  jurisdiction 
of  the  court :  or  take  advantage  of  any  legal  defect, 
incongruity  or  informality  in  the  mode,  in  which  the 
suit  has  been  commenced  or  pursued.  And  hence 
arises  the  division  of  pleas,  on  the  part  of  the  de- 

-    m         n ,  x  — —     /     <^    |<4^ 

fendant,  into  two  kinds,  viz.  dilatory  pleas,  and  pleas 
to  the  action(o)  ;  the  different  characters  and  uses  of 
which  are  to  be  explained  hereafter. 

^  23.     If   the   plea — of  whichsoever  of  the    two 
foregoing   kinds   it   may   be — advances   new  matter, 

(/)  3  Black.  Corn.    299.     Lawes'  PI.  96. 

(m)  2  Salk.  497.     Lawes'  PI.  96.      1  Tidd,  526-7. 

(n)  3  Black.  Com.  301. 

(o)  Id.  Bac.  Abr.  Pleas,  &c.  A. 

6 


38  GENERAL  DIVISIONS  OF  PLEADING. 

CHAP,    it  maj  °f  course  be  met  by  the  plaintiff,  in  either 
n.       of  the  three  modes,  in  which  (as  has  been  shown 

already)  new  matter,  advanced  on  either  side,  may 

always  be  contested  (p). 

t£nplircca-"  ^  24'  The  plaintiff's  answer  to  the  plea  is  called 
J&cn.der'  tne  replication ;  and  the  regular  stages  or  parts  of 
the  pleading,  which  succeed  the  replication,  are  the 
rejoinder,  which  is  the  defendant's  answer  to  it — 
the  surrejoinder,  which  is  the  plaintiff's  answer  to 
the  rejoinder — the  rebutter,  which  answers  the 
plaintiff's  surrejoinder — and  the  surrebutter,  which 
is  in  answer  to  the  defendant's  rebutter(</) 

§  25.  No  train  of  pleading  has  ever  been  carried, 
it  seems,  beyond  a  surrebutter ;  which  has,  there- 
fore, been  regarded  as  the  ultimate  attainable  stage 
of  special  pleading  :  Though  in  the  nature  of  the 
process,  there  would  seem  to  be  no  inherent  impos- 
sibility of  extending  the  series  still  further 

§  26.  The  orderly  parts  of  pleading  then,  when 
carried  to  the  utmost  limit,  which  has  ever  been  at- 
tained in  practice,  are,  (to  recapitulate  them),  the 
declaration,  or  count — the  plea — the  replication — 
the  rejoinder — the  surrejoinder — the  rebutter — and 
the  surrebutter. 

§  27.  In  relation  to  the  offices  of  these  several 
divisions  of  pleading,  it  is  to  be  observed,  that  in 

(p)  Ante,  chap.  1.     3  Black.  Com.  309,  310. 

(?)  Reg.  PI.  57-61.     3  Black.  Com.  310.     Lawes'  PI.  34. 


GENERAL  DIVISIONS  OF  PLEADING.  3 

each  successive  stage  of  the  process,  subsequent  to    CHAP. 
the  defendant's  plea,  the  new  matter,  advanced  by       n. 
each  party,  must  be  not  only  such  as  will  form  a 
sufficient  answer  in  law,  to  \vhat  is  last  before  alleg-  tion/rT 
ed  against  him,  but  such  also  as  wrill  fortify  what  J&™ er> 
he  himself  has  before  pleaded. 

§  28.  And  therefore,  if  matter  pleaded  (after 
the  defendant's  plea),  by  either  party,  does  not  go 
in  support  of  what  has  been  before  alleged  by  him- 
self; the  pleading  is  ill,  even  though  it  might,  in 
itself,  be  a  good  answer  to  the  adverse  allegations, 
which  immediately  precede  it.  For  however  ex- 
tended the  train  of  pleading,  in  any  given  cause,  may 
be,  he,  who  ultimately  prevails,  must  prevail  upon 
the  grounds  first  assumed,  on  his  own  part ;  which  ' 
grounds,  however,  he  can  maintain  in  his  subsequent 
pleading,  only  by  repelling  what  has  been  advanced 
against  him,  in  the  intermediate  allegations  of  his 
adversary.  The  plaintiff  must  therefore  prevail,  if 
at  all,  upon  the  facts  stated  in  the  declaration ;  the 
defendant,  upon  those  stated  in  the  plea.  And 
whatever  the  parties  may  respectively  allege  in 
their  subsequent  pleadings,  must  all  go  to  fortify  the  It 
declaration  on  the  one  side,  and  the  plea  on  the 
other.  If  it  were  otherwise,  the  foundation  of  the 
action,  and  of  the  defence,  might  be  entirely  chang- 
ed, in  each  successive  stage  of  the  pleadings ;  and 
the  great  objects  of  all  pleadings  might  thus  be  de- 
feated. (Vid.  post,  ch.  8,  pt.  3,  §  65.) 


4Q  GENERAL  DIVISIONS  OF  PLEADING. 

CHAP.        §  29.     The  replication  must,  therefore,  so  answer  y 
ii.      the  plea,  as  to  support  the   declaration — the   rejoin- 

der,  in  answering   the  replication,  must   support   the 

plea  ;  and  in  the  same  manner,  the  surrejoinder  must 
support  the  replication  ;  the  rebutter,  the  rejoinder ; 
and  the  surrebutter,  the  surrejoinder '(r).  The 
process  being  thus  conducted,  that  which  is  last 
pleaded,  on  either  side,  necessarily  goes  in  support 
of  what  was  first  pleaded,  on  the  same  side.  Thus, 
a  good  surrebutter  virtually  supports  the  declaration ;  - 
inasmuch  as  it  directly  supports  the  surrejoinder, 
which  directly  supports  the  replication,  and  which 
last  directly  supports  the  declaration (4).  In  the 
same  manner,  a  good  rebutter  consequentially  fortifies 
the  plea :  Since  it  goes  directly  in  support  of  the  re- 
joinder, which  directly  supports  the  plea. 

I  Departure.        ^  30.     The  dereliction  of  the  first  ground  of  com- 
plaint or  defence,  and   the   substitution   of  another, 
in  violation   of  these  principles,  constitute   what  is 
called   a  departure  in  pleading  ;  for  a  particular  ex- 
CH  s         planation    of  which,  and    of   its    consequences,  the 
Pans.       reader  is  referred  to  a  subsequent  chapter. 

(•*•)  Co.  Litt.  303.  b.  304.  a.  Reg.  PI.  112.  167.  3  Black.  Com. 
310. 


(4)  In  these  illustrations,  the  defendant's  plea  is  supposed  to  be 
in  answer  to  the  declaration.  If,  however,  the  plea  attacks  the 
writ,  instead  of  the  declaration  ;  the  replication,  and  of  course  all 
the  subsequent  pleading.--!,  on  the  plaintiff's  part,  must  go  in  sup- 
port of  the  icrit,  and  not  of  the  declaration. 


GENERAL  DIVISIONS"  OF  PLEADING.  4] 

§  31.     Pleas  on  the  part  of  the  defendant,  as  has    CHAP. 
been  already  suggested,   are  of  two  kinds  :    First,       n. 

Dilatory  pleas  ;    Secondly,   Pleras   to   the   action(s).  

The  latter  are  usually  called  pleas  in  bar ;    though  theadefend- 
sometimes,  and  especially  in  the  older  books  of  the  khidsspof.' 
law,  they  are  denominated  perpetual  or  peremptory 
pleas,  or  pleas  in  chief (t). 

^  32.     I.    Dilatory  pleas  are  such  as  delay   the  ^ory 
plaintiff's  remedy,   by  questioning,  not  the  cause  of 
action,  but   the  propriety  of  the  suit,  or   the  mode  in 
which   the  remedy  is  sought.     And  hence  they  de- 
rive the  denomination  of  dilatory  pleas(^). 

^  33.  Sir  William  Blackstone  defines  dilatory 
pleas  to  be  '  such,  as  tend  merely  to  delay,  or  put 
off,  the  suitf(v).  It  would,  perhaps,  be  more  cor- 
rect to  say,  that  they  tend  to  delay  the  plaintiff's 
eventual  remedy.  For  though  pleas  of  this  kind  were, 
formerly,  often  used  for  the  mere  purpose  of  delay, 
without  any  foundation  in  truth ;  and  though  the 
interlocutory  questions,  raised  by  such  a  plea,  may 
still  incidentally  have  the  mere  effect  of  delaying 
the  termination  of  the  suit ;  yet  the  proper  and  direct 
effect  of  a  plea  of  this  kind,  when  it  prevails,  is  in 
general,  and  with  a  very  few  exceptions,  to  defeat 
forever  the  particular  suit,  in  which  it  is  used  (if)  : 
Though  it  leaves  the  merits,  or  right  of  action,  un- 

(s)  3  Black.  Com.  301.     Bac.  Abr.  Pleas,  &c.  A. 

(0  Co.  Litt.  304.  a.  Lawes'  PI.  36.  Com.  Dig.  Abatement,  B. 

(u)  Reg.  PI.  76.     3  Black.  Com.  301. 

(t>).3  Black.  Com.  301. 

(to)  Bac.  Abr.  Pleas,  &c.  F.  14.     3  Black.  Com.  303. 


2  GENERAL  DIVISIONS  OF  PLEADING. 

CHAP     determined ;    so  that  the  plaintiff  is  still  at  liberty 
n>       to  seek  his  remedy,  by  a  new  suit.     The  peculiar 
office  of  a  dilatory  plea  is,  therefore,  in  general,  to 
defeat  the  individual  suit,   in  which  it  is   pleaded, 
without  affecting  the  right  of  action. 

§  34.  Dilatory  pleas  are,  by  Sir  William  Black- 
stone,  divided  into  three  kinds: — 1.  Pleas  to  the 
jurisdiction  of  the  court :  As  that  the  defendant  is 
privileged  to  be  sued,  exclusively,  in  some  other 
court ;  or  in  some  cases,  that  the  cause  of  action 
arose  without  the  limits  of  the  court's  jurisdiction, 
&c.(#)  :  2.  Pleas  to  the  disability  of  the  plaintiff, 
or  as  they  are  frequently  termed,  to  the  person  of 
the  plaintiff:  As,  that  he  is  an  alien  enemy,  an  out- 
law, or  under  some  other  legal  incapacity  to  main- 
tain a  suit(?/) ;  3.  Pleas  in  abatement  of  the  writ, 
or  count.  Pleas  of  this  last  class  are  founded  upon 
some  defect  or  mistake,  either  in  the  writ  itself — 
(as  that  it  is  deficient  in  some  legal  requisite,  or  that 
the  defendant  is  misnamed  in  it,  &c.) — or  in  the 
mode,  in  which  the  count  pursues  it :  As  that  there 
is  some  variance,  or  repugnancy  between  the  count 
and  the  writ ;  in  which  case,  the  fault  in  the  count 
furnishes  a  cause  for  abating  the  writ(z).  But  any 
mistake  or  insufficiency,  apparent  upon  the  face  of 
the  declaration,  (or  count)  without  reference  to  the 
writ — i.  e.  any  mistake  or  insufficiency,  in  the 

(x)  Bac.  Abr.  Pleas,  &c.  E.  Ib.  Cowls,  D.  Gilb.  H.  C.  P. 
188.  189.  3  Black.  Com.  301. 

(?/)  Bac.  Abr.  Pleas,  &c.  F.  1.     Co.  Litt.  128,  a.  129,  b. 

(z)  3  Black.  Com.  301.  Com.  Dig.  Abatement,  G.  1.  8.  Ib. 
Pleader,  C.  14,  16.  Bac.  Abr.  Pleas,  &c.  F.  7. 


GENERAL  DIVISIONS  OF  PLEADING.  43 

statement  of  the  cause  of  action,  is  in  itself  no  ground    CHAP. 
of  abatement,  though  a  good  cause  of  demurrer(a)       n. 
(5).  

§  35.     All  dilatory  pleas  are    sometimes  called 
pleas  in  abatement,  as  contradistinguished  from  pleas 
to  the  action(6).     This,  however,  is  a  vague  use  of 
the  term,  and  never  proper  when  strict  accuracy  is  s 
required. 

§  36.  If  no  dilatory  plea  is  offered — -or  if  any, 
or  all  of  those,  which  the  law  allows,  have  been 
pleaded  and  overruled  as  insufficient  ;  the  defend- 
ant is  still  at  liberty  to  plead. 

II.  To  the  action(c).     For  it  would  be  unreason-  Picas  to  the 

^   '  _  action. 

able  to  render  a  final  judgment  against  him,  until 
he  has  been  required  to  answer,  and  has  had  op- 
portunity to  contest  the  merits,  or  grounds  of  the 
suit :  And  these  he  is  not  bound  to  answer,  until  he 
has  exhausted,  or  waived  his  right  to  interpose  dila- 
tory exceptions. 

(a)  Willes,  410.     1  Show.  9.1.     1  Salk.  212.   1  Mass.  R.  500. 
(6)  3  Black.  Com.  302.     JYotis  Chr.     Lawes'  PI.  37. 
(c)  Co.  Litt.  303.  a.    Bac.  Abr.  Pleas,  &c.  A.  3  Black.  Com. 
303. 


(5)   Most  writers  on  pleading  have  treated  of  dilatory  pleas,  un-   post,  ch.  5. 
der  a  more  minute  and  complex  division,  which  will  be  presented  §  1$  IQ>11' 
in  a  subsequent   chapter.     But  the  threefold  division,  mentioned 
above,  will  here  be  pursued,  as  being  not  only  more  simple,  and 
more  easily  understood  :  but  sufficiently  minute  for  the  ends  pro- 
posed in  this  Treatise. 


44  GENERAL  DIVISIONS  OF  PLEADING. 

CHAP.        §  37.     On    the    other    hand,  the    defendant,  by 
n.      pleading  to  the  action,  waives  all  dilatory  pleas,  ex- 
cept   those,    the    matter   of    which   has   afterwards 


he  action,  accrued(^).  For  by  denying  the  cause  of  action 
itself,  he  tacitly  admits  the  mode,  in  which  the  re- 
medy is  pursued,  to  be  correct. 

^  38.  Pleas  to  the  action  (or  in  bar),  are  usually 
divided  into  two  kinds  :  1 .  The  general,  issue  :  2.  A 
special  plea  in  bar(e).  There  is  however  a  plea 
to  the  action,  which  does  not  strictly  fall  under 
either  of  these  two  denominations,  and  which  is 
called  a  special  issue  (f)  ; — a  plea  termed  special, 
as  distinguished  from  the  general  issue  ;  but  which 
differs  also  from  what  is  appropriately  denominated 
a  '  special  plea  in  bar,'  in  this — that  the  latter  is, 
universally,  a  plea  advancing  new  matter :  Whereas 
the  plea,  called  a  special  issue,  never  advances  such 
matter  ;  but  merely  denies  some  particular  material 
allegation,  the  denial  of  which  is  in  effect  a  de- 

o  ' 

nial  of  the  entire  right  of  action.  These  several 
pleas  are  called,  indifferently,  pleas  to  the  action, 
pleas  in  bar,  or  pleas  in  chief. 

^  39.  A  plea  to  the  action,  being  an  answer  to 
the  merits  of  the  complaint,  always  goes  in  denial 
of  the  alleged  right  of  action.  And  this  the  defend- 
ant may  deny,  either  1,  by  denying,  in  whole  or  in 

(d)  Co.  Litt.  303.  a.     Bac.  Abr.  Pleas,  &c.  2.     1  Tidd,  572. 

(e)  3  Black.  Com.  303.  305.     Bac.  Abr.  Pleas,  &c.  G.  1,  3. 
(/)  Bac.  Abr.  Pleas,  &c.  G.  3.     Com.  Dig.  Pleader,  R.  1.  2. 

Lawes'Pl.  110.  112. 


GENERAL  DIVISIONS  OF  PLEADING.  45 

part,   the  allegations  in  the  declaration ;  or,  2,  by    CHAP. 
alleging  new  matter,  which   admits  the  truth  of  the       n. 

plaintiff's  allegations,  but  goes  in  avoidance  of  them  ;  

or,  3,  by  pleading  matter  of  estoppel(g)  :  A  defence 
which,  neither  admitting  nor  denying  any  of  the 
facts  alleged  by  the  plaintiff,  denies  his  legal  right 
to  allege  them. 

§  40.  1.  When  the  defendant  proposes  to  deny 
all  the  material  allegations  in  the  declaration,  his 
proper  plea  is  the  general  issue.  But  if  the  cause 
of  action  consists  of  several  distinct,  but  connected 
facts,  capable  of  being  separated  in  pleading  ;  the 
defendant,  instead  of  denying  them  all,  by  the  gen- 
eral issue,  may  deny  singly,  any  one  of  them,  which 
is  essential  to  the  plaintiff's  right  of  recovery,  without  [> 
taking  notice  of  the  others  :  And  such  denial  is  a 
sufficient  answer  to  the  whole  declaration (Ii).  For 
where  each  of  several  concurring  facts  is  necessary 
to  one  entire  cause  of  action,  the  denial  of  either  of 
them  is,  necessarily,  a  denial  of  the  whole  cause  of 
action.  The  plea,  in  this  case,  is  a  special  issue(i), 

§41.  When  the  defence,  upon  which  the  de- 
fendant is  to  rely,  does  not  involve  a  denial  of  any 
of  the  material  allegations  in  the  declaration,  he 
may  still  deny  the  right  of  action  by  pleading, 

(g)  3  Black.  Com.  303.  308.    Lawes'Pl.  37-8.  115-6.  130.    3 
East,  346.  365.    Willes,  13. 

(h)  Bac.  Abr.  Pleas,  &c.  G.  3.  Lawes'  PI.  112.  113.  135. 
Com.  Dig.  Pleader,  R.  1.  2. 

(«')  lidem. 

7 


CHAP. 

n< 


GENERAL  DIVISIONS  OF  PLEADING. 

^  42.  2.  Matter  of  avoidance ;  i.  e.  new  matter, 
which  admits  the  declaration  to  be  true,  but  shows, 
nevertheless,  either  that  the  defendant  was  never  lia- 
ble to  the  recovery  claimed  against  him,  or  that  he  has 
been  discharged  from  his  original  liability,  by  some- 
thing super venient(7).  In  either  case,  the  plea  is  a 
special  plea  in  bar — as  is  also, 

3.  A  plea  in  estoppel,  when  pleaded  to  the  declara- 
tion. A  plea  of  this  kind,  like  a  plea  in  avoidance 
of  the  declaration,  always  advances  new  matter ; 
but  it  differs  from  the  latter,  in  this — that  instead  of 
confessing  and  avoiding  the  plaintiff's  allegations,  it 
neither  admits  nor  denies  them  ;  but  alleges  some 
matter  of  estoppel  (as  a  record,  or  deed,  to  which  he 
is  a  party,  or  privy),  and  which,  being  inconsistent 
with  his  allegations,  precludes  him  from  availing  him- 
self of  them(m).  Such  are  the  different  kinds  of 
pleas  to  the  action. 

^  43.  There  is  still,  however,  another  mode,  in 
which  the  defendant  may  deny  the  plaintiff's  right 
of  action  ;  viz.  by  demurring  to  the  declaration — i.  e. 
by  confessing  the  facts  alleged  in  it,  but  denying, 
that  they  constitute,  in  law,  a  cause  of  action(w). 
But  a  demurrer  to  the  declaration  is  not  classed 
among  pleas  to  the  action — not  only  because  it  may 
be  taken,  as  well  to  any  other  part  of  the  pleadings, 
as  to  the  declaration ;  but  also  because  it  neither 

(/)  1  Tidd,  590.     Lawes'  PI.  115. 

(m)  3  Black.  Com.  308.     Willes,  13.     3  East,  346.  365. 

(»)  Bac.  Abr.  Pleas,  Sac.  N.  1.     3  Black.  Com.  314. 


GE>fERVL  DIVISIONS  OF  PLEADING  .  4 

affirms  nor  denies  any  matter  of  fact,  and  is,  there-    CHAP. 
fore,   not  regarded  as  strictly  a  plea,  of  any  class  ;       n. 
but   rather   as   an  excuse   for  not   pleadingfo)   (6). 

P     -•*          l-> 

As,  however,  a  demurrer  to  the  declaration  is  one  parVi.l'a 
of  the  modes  of  contesting  the  right  of  action ; 
there  seems  to  be  a  propriety  in  adverting  to  it,  in 
connexion  with  pleas  to  the  action — although  all 
demurrers  are,  in  their  nature,  as  well  as  structure, 
essentially  different  from  all  pleas,  properly  so  called. 

(o)  Bac.  Abr.  Pleas,  &c.  N.  1. 

(6)  The  proposition,  that  a  demurrer  is  not  strictly  a  plea,  is 
Wiarranted,  as  well  by  its  form,  as  its  essential  nature.  For  the 
party  demurring,  after  having  averred  that  the  adverse  pleading, 
and  the  matter  contained  in  it,  are  '  in  no  wise  sufficient  in  law,' 
&c.  proceeds  to  say,  that  'he  hath  no  necessity,  neither  is  he 
obliged,  by  the  law  of  the  land,  in  any  manner  to  answer  the 
same,'  i.  e.  to  plead  to  it.  (3  Black.  Com.  App.  No.  Ill,  §  6. 
3  Wils.  292.  2  Chitt.  PI.  678.)  Vide  ch.  9,  s.  2. 


CHAPTER  III. 


OF  THE  GENERAL  RULES  OF  PLEADING. 


CHAP.         BEFORE  we  enter  upon  a  separate  examination  of 
In-       the  several  divisions  of  Pleading,  enumerated  in  the 


"  preceding  chapter,  it  will  be  proper  to  premise  cer- 
tain miscellaneous  rules,  applicable  to  pleading  in 
general. 

Requisites         ^  ]  .     There  are  two  indispensable  requisites  to  all 

of  pleading.  •> 

good  pleading  :  1  ,  That  the  matter  pleaded  (i.  e.  the 
facts  alleged,)  be  sufficient  in  law  to  avail  the  party 
who  pleads  it  ;  and  2,  That  it  be  deduced  and  alleg- 

Po^.ch.9,  '  .  to 

s.  is.          ed,  according  to  the  forms  of  law.     And  it  either  or 


these  requisites  be  omitted,  the  pleading  is 
For  all  pleading  is  required  to  be  sufficient,  not  only 
in  substance,  but  in  form  also  :  (By  which  latter 
term,  we  are  here  to  understand  those  technical  or 
artificial  modes  of  introducing  and  detailing  the  sub- 
ject-matter pleaded,  which  have  been  established  by 
usage,  and  which  cannot  be  dispensed  with,  without 

(p]  Hob,  164.  Bac.  Abr.  Pleas,  &c.  Introduction.  Cowp.    683, 


GENERAL  RULES  OF  PLEADING.  49 

impairing   that   certainty,  regularity  and  uniformity,    CHAP. 
which  are  essential  in  all  judicial  proceedings(l).  m. 


^  2.  It  is  regularly  essential  then  to  all  good 
pleading,  that  the  party,  offering  new  matter,  allege 
every  substantive  fact,  which  is  necessary  in  law  to 
the  maintenance  of  his  suit  or  defence^).  For 
if  any  such  fact  be  omitted,  the  claim  or  defence, 
as  disclosed  by  the  pleader,  must  of  necessity  be 
defective. 

^3.     But  that  which  already  appears  sufficiently,  what 
in  the  pleading  of   either  party,  without  a  formal  appears 

r  J  '  need  not  be 

allegation,   need  not  be  expressly  averred(r).     For  averred. 
it  would  be  obviously  nugatory  and  absurd,  to  re- 
quire a  distinct  and  substantive  averment   of  that 
which,    by   the    supposition,    already   appears    with 
sufficient  certainty. 

§  4.  Thus,  in  pleading  a  covenant  to  stand  seized 
to  uses,  (which  is  a  species  of  conveyance  founded 
only  upon  the  consideration  of  kindred  or  marriage,} 
if  it  is  expressly  shown  that  the  deed  is  from  a 

(q)  Bac.  Abr.  Pleas,  &c.  A.  Com.  Dig.  Pleader,  C.  76. 
Lawes'  PI.  46. 

(r)  Co.  Litt.  303.  Yelv.  176,  note.  7  Co.  40  b.  9  Ib.  54. 
a.  b.  11  Ib.  25.  a.  2  N.  Rep.  77. 


(1)  This  consideration  may  account,  in  a  great  measure,  for  the 
importance  which  courts  of  justice  attach — and  which  they  are, 
sometimes,  charged  with  attaching,  unnecessarily — to  matters  of 
mere/or»i,  in  pleading. 


50 

CHAP- 
III. 


Circum- 
stances 
implied. 


GENERAL  RULES  OF  PLEADING. 

father  to  his  son,  or  other  near  relative,  there  is  no 
need  of  averring  distinctly  that  the  conveyance  was 
made  in  consideration  of  kind  red  (V)  :  For  that  such 
was  the  consideration,  (there  being  no  other  alleged,) 
is  apparent  from  the  relationship,  which  is  expressly 
stated.  And  upon  the  same  principle  it  is,  that 
though,  in  trespass  or  trover,  for  the  taking  or  con- 
version of  goods,  or  specific  chattels,  the  value  of 
the  property  must  regularly  be  alleged  ;  yet  if  the 
action  is  brought  for  taking  or  converting  current 
money  (as  one  hundred  dollars,  current  coin  of  the 
United  States),  it  is  unnecessary  to  make  a  distinct 
averment  of  its  value(^)  :  Since  that  fully  appears 
from  the  number  of  dollars  stated. 

^  5.  Thus  also,  in  an  action  upon  a  covenant  for 
quiet  enjoyment,  (in  which  the  eviction  of  the  plain- 
tiff must  be  shown  to  have  been  under  elder  title) 
if  it  appears  clearly,  from  facts  stated  in  the  declara- 
tion, that  the  evictor's  title  is  the  elder,  there  is  no 
need  of  formally  and  distinctly  averring  that  it  is 
SO(M). 

^  6.  Upon  a  similar  principle,  circumstances, 
however  material,  if  necessarily  implied  in  any  fact 
expressly  stated,  need  not  themselves  be  substan- 
tively  alleged  (v).  And  therefore,  if  one  pleads  a 

(*)  lid. 

(0  11  Co.  54.  b. 
(u)  4  T.  R.  617.     2  Lev.  37. 

(c)  Bac.  Abr.  Pleas,  &c.  I.  3.  Co.  Litt.  303.  b.  1  Salk.  91. 
8  Co.  82.  b. 


GENERAL  RULES  OF  PLEADING. 

feoffment,  without  expressly  averring  livery  of 
seisin,  this  omission  does  not  vitiate  the  plead- 
ing (iv)  :  Since  livery  of  seisin,  being  of  the  es-  .y^JC^  »<&«£** 
sence  of  every  feoffment,  a  feoffment,  ex  vi  termini, 
implies  such  livery.  And  therefore,  to  allege  a  feoff- 
ment, is  by  necesssary  implication  to  allege  livery  of 
seisin.  Again  :  If  the  plaintiff  in  ejectment  de- 
scribes the  land  in  question  as  lying  in  the  parish  of 
A,  it  is  not  necessary,  in  laying  the  ouster,  to  allege 
that  it  was  committed  in  the  same  parish  :  For  that 
fact  sufficiently  appears  from  the  local  description 
before  given  of  the  land  (#). 

^  7.     All  facts  alleged  in  good  pleading,  consist  Gist  of  the 
either,  1 ,  of  the  gist  or  substance  of  the  complaint,  a  lon' &c" 
or  defence — or,  2,  of  matter  of  inducement,  or  as  it 
is   sometimes  termed,   conveyance — or,  3,  of  matter 
of  aggravation.     Whatever  else  is  stated,  in  any  part 
of  the   pleadings,  is  but   surplusage.     For   what   is 
termed  form    in   pleading,    constitutes   no    distinct 
matter,  but  simply  the  manner,  in  which  the  matter 
pleaded  is  stated. 

§  8.  Thejrist^of  the  complaint  or  defence  is  the 
essential  ground,  or  principal  subject-matter  of  it; 
or  that,  without  which  no  legal  cause  of  complaint 
can  appear,  on  the  one  hand,  or  no  legal  ground  of 
defence,  on  the  other  ;  however  perfect,  in  point  of 

(to)  lid.  2  Saund.  305,  n.  13.  Com.  Dig.  Pleader,  E.  9. 
Cro.  Jac.  411.  Cro.  Eliz.  401.  See  ch.  10. 

(a?)  Com  Dig.  Pleader,  C.  20.  Cro.  Jac.  555,  557.  2  Mod. 
304.  2  Black.  R.  706. 


GENERAL  RULES  OF  PLEADING. 


CHAP.  form>i  the  pleading  may  be.     Of  this  nature  is   the 

in.      consideration  of  the  defendant's  promise,  in  assump- 

--  sit  —  the  performance  of  a  condition  precedent,  in  an 

action  on  a  contract,  containing  such  a  condition  — 

the  conversion  in  trover,  &c. 


,  induce-  §  9.     Matter  of  inducement  is  that  which  is  merely 

introductory  to  the  essential  ground] or  substance  of 
the  complaint,  or  defence — or  in  some  respect 
explanatory  of  it,  or  of  the  manner  in  which  it  ori- 
ginated or  took  place.  Thus  in  trover,  the  loss  and 
finding  of  the  plaintiff 's  goods(?/) — and  in  an  action 
for  a  nuisance  to  a  house  or  land,  the  plaintiff's  pos- 
session of  the  subject  injured — are  respectively  mat- 
ters of  inducement. 

,•  Aggrava-  ^10.  Matter  of  aggravation  is  that  which,  in 
actions  for  forcible  injuries,  is  intended  to  show  the 
circumstances  of  enormity,  under  which  the  princi- 
pal wrong  complained  of  was  committed.  Thus  if 
the  plaintiff,  in  trespass  for  breaking  and  entering 
his  house,  superadds  to  his  statement  of  the  break- 
ing and  entry,  that  the  defendant  at  the  same  time 
made  an  affray,  beat  his  servants,  scattered  his  goods, 
and  committed  other  enormities,  these  superadded 
facts  are  only  matters  of  aggravation,  which  require 
neither  proof  nor  answer  :  The  breaking  and  enter- 
ing of  the  house  being  alone  the  gist  of  the  ac- 
tion^)— and  whatever  sufficiently  answers  these,  is 

(y)  Bull.  N.  P.  33.     Lawes'  PI.  66. 

(2)  3  Wils.  294.     3  T.  R.  292.     1  H.  Black.   555.     Lawes' 
PI.  70. 


GENERAL  RULES  OF  PLEADING.  53 

of  course  a  sufficient  answer  to  the  whole  complaint,    CHAP. 
including  all  matters  of  aggravation  (V).  in. 

^  11.  The  last  observation  is  equally  true  of 
matter  of  inducement ;  which,  from  its  nature  as  al- 
ready explained,  does  not  in  general  admit  of  a  dis- 
tinct denial  or  precise  answer  of  any  kind (6).  For 
any  sufficient  answer  to  the  material  facts,  alleged 
in  the  pleading  of  the  adverse  party,  covers  all  that 
he  has  alleged — including  as  well  matter  of  in- 
ducement as  matter  of  aggravation. — Surplusage  is  Surp!us. 
that  which  is  impertinent  or  entirely  surperjluous,  as  age- 
not  being  necessary  either  to  the  substance  or  the 
form  of  pleading (bb). 

^  12.  It  is  regularly  necessary  in  pleading  to  Facts  only 
state  nothing  except  facts,  and  as  the  case  may  be,  beCpieSaaded.° 
conclusions  from  them(c);  or  in  other  words,  nothing 
except  facts  as  they  really  exist,  or  are,  by  legal  fic- 
tion or  presumption,  deemed  to  exist.  It  is  of 
course  unnecessary,  generally  speaking,  to  allege 
matter  of  laiv(d).  For  the  judges  are  always  pre- 
sumed— as  has  been  suggested  in  a  former  chap- 
ter— to  know  judicially  what  the  law  is ;  and  have 
therefore  no  occasion  to  be  informed  of  it  by  the 
pleadings. 

§13.    In    some    few  instances,   however,  it  was  lawnotne. 
formerly  thought  necessary,  and  was  therefore  cus- 

(a)   lid.     Lawes'  PI.  70. 
(6)   Lawes'  PI.  118.     Bull.  N.  P.  33. 

(bb)  Com.    Dig.  Pleader,  C.  28.  29.  E.  12.     Lawes'  PI.  63. 
(c)  Doug.  159.  278.     Lawes'  PI.  46.         (d)   lid.  8  Co.  155. 
8 


54  GENERAL  RULES  OF  PLEADING. 

CHAP,  ternary,  in  declaring,  to  state  the  law  as  well  as  the 
in.  facts  upon  which  the  action  was  founded.  Such  was 
the  practice  in  declaring  in  actions  ex  delicto,  against 
common  carriers  for  goods  lost  or  damaged  by  their 
negligence  or  breach  of  trust ;  and  in  similar  actions 
against  innkeepers,  for  the  effects  of  their  guests, 
when  lost  or  injured  infra  hospitium,(e)  :  In  both  of 
which  cases,  the  plaintiff,  according  to  the  ancient 
form  of  pleading,  recited  in  his  declaration  the  cus- 
tom of  the  realm,  i.  e.  the  rule  of  laiv,  in  virtue  of 
which  he  claime'd  a  right  of  recovery (/) (2).  But 
*  the  custom  of  the  realm'  being,  in  all  cases,  no  other 
than  the  common  or  general  unwritten  law  of  the 
realm,  there  was  never,  on  principle,  any  need  of  re- 
citing it.  And  of  late,  that  practice  has  in  a  great 
measure  fallen  into  disuse (g)  :  Though  in  actions 
sounding  in  tort  against  innkeepers,  it  appears  still 

to  be  usually,  though  unnecessarily,  followed  (A). 

&A*  *  «*W  y> 

^14.  In  the  same  manner,  it  was  formerly  usual 
in  declarations  on  bills  of  exchange,  to  recite  the  cus- 
tom of  merchants  (i.  e.  the  rule  of  mercantile  laws) 
upon  which  the  action  was  found ed(f).  But  in  this 
instance  also,  as  in  the  two  former,  such  a  recital 

(e)  Hob.  18.  3  Mod.  227.  1  Wils.  281.  2  Chitt.  PI.  273. 
Bac.  Abr.  Carriers,  A.  Id.  Inns,  C.  6.  (n). 

(J  )  1  Sid.  245.  Com.  Dig.  Jlclion  on  case,  for  neg.  C.  2. 
Bac.  Abr.  Inns,  C.  6.  3  Co.  32.  a.  F.  N.  B.  94. 

(g-)   3  Wils.  429.     2  Chitt.  PI.  271-2.  274. 

(h)   2  Chitt.  PI.  274. 

(1)  PI.  Assist.  40.     Kyd  on  Bills,  177.  180.     Chitt.  on  Bills, 
184-5.  233-4. 

(2)  In  some  few  other  instances  also,  the  same  mode  of  plead- 
ing   formerly  prevailed.      (Vid.  1  Lill.  Ent.  67.  68.  69.  80.  81.) 


GENERAL  RULES  OF  PLEADING.  55 

was,  upon   the  principles  of  pleading,   clearly  un-    CHAP. 
necessary :    Since    the    '  custom  of  merchants,'    or       HI. 

which  is  the   same  thing — the  law-merchant,   is  a  

branch  of  the  common  law(/c).  In  the  modern  pre- 
cedents, therefore,  the  recital  of  the  custom  is  in 
general  omitted(/).  And  even  the  practice,  wrhich 
still  prevails(m),  of  counting  upon  the  custom  (i.  e. 
of  making  an  express  reference  to  it  in  the  declara- 
tion, without  reciting  it),  appears  for  the  same  rea- 
son to  be  an  unnecessary  formality,  and  has  been  so 
adjudged  (n). 

^15.  In  some  instances,  however,  inferences  of  inferences 
law  are  advanced  in  pleading,  for  the  purpose  of  stated. 
showing  the  intended  application  of  the  facts  pleaded, 
or  for  the  sake  of  mere  form. — Thus  in  declaring 
on  bills  of  exchange,  after  the  statement  of  the  res 
gesta,  or  material  facts,  the  plaintiff  adds,  *  by  means 
whereof,  &c,  the  defendant  became  liable,"*  i.  e.  in 
law,  '  to  pay,'  fcc(o).  It  is  also  usual  for  the  de- 
fendant, in  a  plea  of  justification — after  stating  the 
special  matter  which  constitutes  his  defence — to 
accompany  his  confession  of  the  facts  alleged  against 
him  with  a  prout  ei  bene  licuit ;  i.  e.  to  aver  that  he 
did  the  acts  complained  of,  '  as  by  law  he  well 
might'(p).  In  this  instance  also,  the  proposition 

(A)  1  Ld.  Ray.  88.  175.     3  Ib.  1542.     Carth.  288. 
(I)  lid.  PI.  Assist.  80.  81.  241.     Chitt.  on  Bills,  184.  234. 
(m)  Chitt.  on  Bills,  233-4.     PI.  Assist.  241. 
(n)  1  Ld.  Ray.  88.  175.  234.     Carth.  83.  269.   Chitt.  on  Bills, 
234,  (n,  c.) 

(o)  Chitt.  on  Bills,  235-244.     PI.  Assist.  241. 
(/>)  8  T.  R.  79.     2  Chitt.  PI.  503-506.  524-530. 


56 


CHAP. 
III. 


Particular 
customs. 


GENERAL  RULES  OF  PLEADING. 

involved  in  the  clause  just  quoted,  is  only  an  infer- 
ence of  law  from  the  facts  which  constitute  the  justi- 
fication, and  therefore  is  not  of  the  substance  of  the 
plea. 

^16.  In  pleading  particular  customs^,  or  pri- 
vate statutes,  not  only  must  the  facts  which  bring  the 
case  within  the  custom  or  statute  be  pleaded  ;  but 
the  custom  or  statute  itself- — or  at  least  so  much  of 
it  as  is  material  to  the  case — must  be  recited  by  the 
party  complaining  or  defending  under  it(r)  (3). 
But  the  recital,  in  these  cases,  is  not  to  be  deemed 
matter  of  law.  For  such  customs  and  statutes — 
although  they  may  respectively  furnish  the  rule  of 
decision  in  cases  falling  within  them — are  no  part 
of  the  general  law  of  the  land ;  but  like  private  re- 
cords, prescriptions,  deeds,  &c.  are  regarded  and 
treated  in  pleading  as  matters  of  fact,  of  which  the 

(q)  1  Black.  Com.  76.  Co.  L.  175.  Litt.  §  265.  Dr.  &  St.  18. 
(r)  1  Black.  Com.  86.     Cro  Jac.  139.  4  Co.  76.  2  East,  341. 
Bac.  Abr.  Statute.  L.  2.     1  Saund.  193. 


(3)  There  is  a  material  distinction,  not  always  observed  by 
writers  on  pleading — and  the  non-observance  of  which  has  some- 
times occasioned  confusion — between  pleading,  counting  upon, 
and  reciting  a  statute.  Pleading  a  statute,  is  merely  stating  the 
facts  which  bring  a  case  within  it,  without  making  mention  or 
taking  any  notice  of  the  statute  itself.  Counting  upon  a  statute, 
consists  in  making  express  reference  to  it — as,  by  the  words, 
'  against  the  form  of  the  statute'  (or,  '  by  force  of  the  statute'), 
*  in  such  case  made  and  provided.'  Reciting  a  statute,  is  quoting 
or  stating  its  contents.  A  statute  may,  therefore,  be  pleaded  with- 
out either  reciting  or  counting  upon  it ;  and  may  be  counted  upon 
without  being  recited. 


GENERAL  RULES  OF  PLEADING.  57 

courts  of  justice  cannot    judicially  take  notice(s).    CHAP. 
Hence  it   is,  that  the  existence  of  any  such  custom       in. 

or   statute  may  be  denied  by  plea(^)  ;  and  that  when  

so  denied,  it  must  be  proved  as  a  fact,  and  can  be 
tried  only  on  an  issue  in  fact.  Whereas  matter  of 
law,  properly  so  called,  can  never  be  denied  in 
pleading(w). 

$>  17.     But  under  the  rule  requiring  all  material  Fictions  in 

pleading. 

facts  to  be  pleaded,  it  is  sometimes  necessary  to  al- 
lege not  only  those  which  really  exist;  but  also 
certain  conclusions,  or  fictions,  which  the  law  founds 
upon,  or  connects  with  them,  and  which  it  regards 
as  facts,  though  they  exist  only  in  legal  intend  ment. 

\  •      •  GL 

^18     Fictions  in  pleading  were  devised  for  the  \ 

sole  purpose  of  advancing  justice(v)(&) ;  \  and  hav-  1 
ing  been  sanctioned  for  this  purpose,  they  require, 
on  the  one  hand,  no  proof,  and  on  the  other,  they 
cannot  be  traversed (w)  :  Since  to  require  the  one, 
or  permit  the  other,  would  defeat  the  end  for  which 
they  were  designed.  The  fictions  employed  in  plead- 
ing are  numerous  ;  but  their  general  nature  and  ope- 

(*)  1  Black.  Com.  86.     4  Co.  76.  a.  b.      1  Stra.  187.  Doug. 
378.  330.  n. 

(0  Bac.  Abr.  Statute,  L.  2. 
(u)  8  Co.  28. 

(t»)  3  Black.  Cora.  43.  107. 
(w)  Id.     Cowp.  177-8. 


(4)  Fictions  in  pleading  are  seldom  employed,  except  in  the 
declaration;  but  are  not,  however,  universally  confined  to  that 
part  of  the  pleadings. 


58  GENERAL  RULES  OF  PLEADING. 

CHAP,    ration  may  be  sufficiently  illustrated,  for  the  present 


in.      purpose,  by  two  or  three  familiar  examples  :  — 


^19.  In  the  action  of  indebitatus  assumpsit,  if 
there  is  an  actual  debt,  or  legal  liability,  (by  simple 
contract),  on  the  part  of  the  defendant,  but,  as  is 
frequently  the  case,  no  express  undertaking  to  pay 
the  debt ;  the  plaintiff,  in  his  declaration,  must  regu- 
larly allege  a  promise(x)  (5).  For  as  the  action  of 
assumpsit  is,  in  its  form  and  structure,  adapted  to  no 
other  demands  than  those  arising  upon  promises ; 
the  law, — when  no  promise  has  actually  been 
made — implies  or  presumes  one,  from  the  fact  of  the 
defendant's  being  indebted ;  for  the  purpose  of  en- 

(a?)  Cro.Eliz.913.   1  Lev.  164.  2  Ld.  Ray.  1517.  2  Stra.  793. 

(5)  It  is  held,  however,  that  in  declaring,  in  assumpsit,  on  a 
bill  of  exchange,  against  the  drawer,  or  on  a  promissory  note, 
against  the  maker,  a  statement  of  the  facts,  which  render  the  de- 
fendant liable  to  pay,  is  sufficient,  without  expressly  alleging  a 
promise  on  his  part.  (1  Salk.  128.  1  Stra.  224.  Ld.  Ray.  538. 
2  New  Rep.  63.  n.)  The  reason,  assigned  for  the  rule,  is,  that 
the  drawing  of  the  bill,  or  making  of  the  note,  is  of  itself  an  actual 
promise:  So  that  alleging  the  act  of  drawing,  &c.,  is  virtually  al- 
leging a  promise,  by  the  drawer,  &c,  to  pay. — Whether  this  rule, 
so  far  as  it  regards  the  declaration  on  a  bill  of  exchange,  (in  which 
(the  drawer  makes  no  express  promise),  is  agreeable  to  the  analo- 
gies and  principles  of  pleading,  appears  at  least  questionable. 
For  in  all  other  cases  of  indebitatus.  assumpsit,  the  facts,  stated  in 
the  declaration,  as  the  ground  of  the  defendant's  liability,  are  re- 
garded, upon  the  face  of  the  record,  only  as  the  consideration  of 
the  promise,  which  the  declaration  alleges,  and  must  allege.  But 
whether  the  rule  is,  on  principle,  correct  or  not,  the  universal 
practice  is,  to  allege  a  substantive  promise,  by  the  drawer  of  the 
bill. 


GENERAL  RULES  OF  PLEADING.  59 

titling  the  plaintiff  to  this  beneficial  action,  instead  of  CHAP. 
the   precarious   and   less   remedial   action   of    debt,      in. 

which  was  anciently  his  only  remedy  in  such  a  case.  — 

But  whenever  the  promise  is  thus  implied,  it  is  de- 
clared upon  as  an  express  one,  and  upon  the  face  of 
the  record  is  always  taken  to  be  express.  There  is, 
indeed,  no  such  thing  as  an  implied  promise  in  plead- 
ing ;  or  rather,  the  fact  of  its  being  implied  appears 
only  in  evidence,  and  never  upon  the  record(y). 

^  20.  In  trover  also,  the  goods,  for  the  conver- 
sion of  which  the  action  is  brought,  are,  according 
to  the  precedents,  alleged  to  have  been  lost,  and  to 
have  come  to  the  defendant's  hands  by  jfinding(z). 
For  as  trover  originally  lay  only  for  the  conversion  of 
goods  actually  lost  and  found  (a)  ;  the  averment  of 
a  loss  by  the  plaintiff,  and  a  finding  by  the  defend- 
ant— which,  in^  most  cases,  is  a  mere  fiction — was, 
at  a  later  period,  introduced  for  the  purpose  of  ex- 
tending this  liberal  action  to  cases,  in  which  there 
was  anciently  no  other  remedy,  than  that  afforded  by 
the  more  narrow  and  inconvenient  action  of  de- 
tinue(b).  And  thus,  by  the  aid  of  this  fictitious 
averment,  which  is  not  traversable,  the  action  of 
trover  now  lies  in  all  cases,  in  general,  in  which  he 
who  is,  by  any  means,  in  possession  of  another's 

(y)  6  Mod.  131.    Cowp.  289.   7  T.  R.  351.  n.    1  Ld.  Ray.  538. 
(2)  1LH1.  Ent.  70.  3  Black.  Com.  153.  2.  Chitt.  PI.  223-231. 
(a)  3  Black.  Com.  152.     Bac.  Abr.  Trover.  Introd. 
(&)  3  Reeve  H.  E.  L.  385-6.  526.     3  Black.  Com.  153.     3 
Woodes.  212. 


60  GENERAL  RULES  OF  PLEADING. 

CHAP     personal  chattels,  converts  them  to   his  own   use(c) 
m.      (6). 


^21.  So  also  in  the  modern  English  ejectment, 
which  lies  nominally  only  for  a  term  of  years,  the 
lease  to  the  nominal  plaintiff,  his  entry  under  it,  and 
the  ouster  charged  upon  the  casual  ejector,  (all 
which  were  originally  material  facts,  and  are  still 
stated  as  facts  in  the  declaration),  are  in  reality 
mere  fictions,  devised  for  the  purpose  of  escaping 
from  the  inconvenient  forms  of  real  actions,  and  fa- 
cilitating the  determination  of  questions  of  title  to 
real  property (d).  And  by  these  fictions,  aided  by 
corresponding  rules  of  practice,  this  convenient 
remedy  is  accommodated  practically  to  the  trial  of 
freehold  title s(e.) 

h"oew"tompbe'  §  22.  Whenever  it  is  necessary  for  a  party,  in 
pleaded.  any  stage  of  ^e  pleadings,  to  show  an  estate  m  fee- 
simple,  it  is  sufficient,  in  general,  to  allege  the  estate 
in  general  terms,  (as  that  he,  or  another,  was  'seised 
in  his  demesne  as  of  fee'),  without  stating  when  or 
how  the  estate  commenced,  or  was  created^/]) 

(c)  Bac.  Abr.  Trover.  Introd.  Cro.  Eliz.  781.  Bull.  N.  P.  33. 

(d)  3  Black.  Com.  199.  201.  206.     2  Burr.  667-8. 

(c)  1  Wils.  220.     7  T.  R.  327.  334.     1  Bos.  &  P.  573. 
(/)  1  Ld.  Ray.  333.     2  Salk.  562.    Comb.  476.    Carth.  444. 
3  Wils.  70.  72.     12  Mod.  191. 

(6)  Since  the  action  has  been  thus  extended,  it  is  held,  that 
the  averment  of  finding  is  not  indispensable  (5  Bac.  Abr.  Tro- 
ver, F.  1.  Bull.  N.  P.  33.)  It  is  still  retained,  however,  in  the 
approved  precedents. 


GENERAL  RULES  OF  PLEADING.  gj 

But  when  title  to  any  particular  estate — as  an  estate     CHAP. 
in   tail,    for  life,  or    for  years — is    necessary    to   be       in. 

shown  in  a  plea  in  bar,  acowry,  replication,  or  any  of 

the  pleadings  subsequent  to  the  declaration,  the  com-  estates," 
mencement  of  the  estate,  and  the  mode  of  its  deriva-  ed!v  ' 
tion,  must  be  specially  stated (g-). 

§  23.  The  principal  reason  of  this  diversity  ap*  i 
pears  to  be,  that  an  estate  in  fee  simple  may  be,  and  \ 
frequently  is  acquired  by  means,  consisting  of  sheef  1 
matter  of  fact,  (as  by  a  continued  disseisin  of  the 
rightful  owner,  or  by  long  possession),  of  which  the 
jury  is  competent  to  judge(/«) ;  and  which  need 
not,  therefore,  be  specially  shown  to  the  court  upon 
the  record  :  And  hence  a  general  allegation  of  a 
seisin  in  fee  simple  is  traversable(V).  Whereas  par- 
ticular estates,  which  must  always  be  derived  out  of 
the  fee  simple,  can  regularly  be  created  only  by 
legal  conveyance,  or  by  operation  of  law  (A*)  ;  both 
of  which  modes  of  acquisition  necessarily  involve 
matter  of  law ;  of  which  the  jury  are  not  competent 
judges  :  And  therefore,  a  general  allegation  of  a  sei- 
sin or  possession  of  such  an  estate  in  a  plea,  &c.  is 
ill ;  because  it  improperly  blends  law  and  fact,  and 
therefore  is  not  traversable(Z). 

§  24.      It    is    hence    necessary — when    title    to 
estates  of  the   latter  kind  is  to  be  averred  in  a  plea, 

(K)  lid- 

(h)   3  Salk.  562.     3  Wil.s.  72.      Co.  Lit.  297.  a. 

(j)   Comb.  476.      12  Mod.  191. 

(A-)  3  Wils.  72.      12  Mod.  191.     2  Salk.  562. 

(/)  Comb.  476.     Carth.  445.     12   Mod.  191.     2  Salk.  562. 

9 


Q<2  GENERAL  RULES  OF  PLEADING. 

CHAP,    avowry,   &c. — that   the  time  and  manner  of  their 
in.      derivation  be  specially  shown  in  the  pleading ;  that 

* the  plaintiff  may  be  able  to  traverse  distinctly  any 

esatater,how  particular  point  in  the  title.     For  as  there  is  no  sen- 

pleaded.          r      ,     .  ,  .  ,.         .  p 

eral  issue  to  pleas,  avownes,  replications,  &c  ;  no 
traverse  can,  in  general,  be  taken  upon  them,  other- 
wise than  by  denying  precisely  some  or  all  of  the 
specific  allegations  contained  in  them(w). 

§  25.  But  in  personal  actions,  this  latter  rule 
holds,  in  general,  only  of  those  parts  of  the  plead- 
ings, which  are  subsequent  to  the  declaration.  And 
therefore  if  a  tenant  in  tail,  for  life,  or  for  years, 
brings  a  suit  for  an  injury  to  his  possession,  (as  in 
trespass  quare  clausum  fregit,  trespass  on  the  case 
for  obstructing  a  way,  &c.)  ;  it  is  not  necessary  for 
him  to  state  the  commencement  of  his  title  in  his 
declaration(n).  For  the  action  is  not  founded  on 
title^  but  on  possession.  It  is  not  necessary,  there- 
fore, in  such  a  case,  to  state  his  title  in  any  manner 
whatever  :  It  being  sufficient  to  allege  merely  his 
possession.  (For,  as  against  a  wrong  doer,  possession 
alone,  in  the  plaintiff,  is  sufficient^)  ;  and  in  ac- 
tions of  this  kind,  the  defendant  is  always  charged 
as  such.) 

§  26.     And  in  general,  when,  as  in  the  preceding 
cases,  a  particular  estate  is  only  matter  of  induce- 

(m)  2  Salk.  562. 

(n)  2  Salk.  562.     Comb.  476.     Cro.  Car.  571.     Carth.   444. 
(o)  1  Ld.  Ray.  333.  266.     Com.  Dig.  Pleader,  C.  39.     Sayer, 
32.       1  Wils.  327.      1  Vent.  319. 


GENERAL  RULES  OF  PLEADING.  Q 

ment,  itm is  unnecessary  in  any  stage  of  the  plead-    CHAP. 
ings,  to  state  when  or  how  it  commencedQ?)  :     The       in. 
reason   of  which   is   apparent,   from  the  principles, 
(already  stated),  which  regulate  the  pleading  of  mat- 
ter of  inducement,    in  general.     Indeed  the  single 
consideration,  that  such  matter  is  never  contested  in 
the  pleadings,  furnishes  a  sufficient  reason  for  the 
rule. 

^  27.  And  therefore,  in  an  action  of  trespass  for 
an  assault  and  battery,  if  the  defendant,  being  a 
tenant  for  years  of  a  house  or  land,  justifies  the 
acts  complained  of,  as  having  been  done  in  resisting 
the  plaintiff's  unlawful  entry  into  the  one,  or  upon 
the  other  ;  it  is  sufficient  as  regards  the  matter  of  ti- 
tle, for  the  defendant  to  aver  in  his  plea,  that  he  was 
4 possessed  of  a  certain  dwelling-house'  (or  '  a  certain 
close')  &c.  without  stating  the  time  at  which,  or  the 
manner  in  which,  his  possession  commenced (g).  For 
to  his  plea,  his  estate  or  possession  is  but  matter  of 
inducement. 

&  28.     As  a  general  rule,  all  material  facts,  (7)  Material 

111  .,  .,  ,.  .    .         averments 

pleaded  on  either  side,  must  be  stated  in  positive  must  be  di- 

7     7 .  .,  ,         ..  .  rect  and 

ana  direct  terms,  and  not  argumentatively,  (i.  e.  in  a  positive. 
manner   which  leaves  them  to  be  collected  by  in- 

(p)  3  Wils.  72.     1  Ld.  Ray.  334.     8  T.  R.  79.  299.     2  Chitt. 
PI.  529-531.     Com.  Dig.  Pleader,  C.  43.  E.  19.     Carth.  444. 
(9)  lid- 

(7)  Material  facts  are  such  as  are  essential  to  the  right  of  ac- 
tion, or  defence,  and  are  therefore  of  the  substance  of  the  one,  or 
the  other. 


gj,  GENERAL  RULES  OF  PLEADING. 

CHAP,  ference)  ;  nor  by  way  of  recital,  as  under  a  '  where- 
in,     as'(r).     This  requisite  is  prescribed,  not  only  for  the 

sake  of  precision ;    but  also  that  the  adverse  party 

averments,  may  be  enabled  to  traverse  the  matter  alleged,  direct- 
etsBeq.  421  ly  and  distinctly.  And  therefore,  if  in  an  action  of 
covenant  broken,  the  defendant — instead  of  pleading 
performance  generally,  or  specially,  as  the  nature 
and  terms  of  the  contract  may  require — pleads 
that  he  has  not  broken  his  covenant ;  the  plea  is 
ill(V).  For  it  leaves  the  fact  of  performance  to  be 
inferred  from  that  of  the  covenant's  not  being  bro- 
ken (8),  so  that  the  former  fact,  (the  only  one,  on 
which  such  a  plea  can  be  supposed  to  be  founded), 
cannot  be  directly  put  in  issue  by  a  traverse  of  the 
plea. 

^  29.  Upon  the  same  principle,  if  in  trespass 
for  tearing  the  seal  from  a  deed,  alleged  to  have 
been  made  by  A.  to  B.,  and  to  have  conveyed  to  B. 
a  certain  manor,  the  defendant  pleads  that  A  did  not 
convey  the  manor  to  B. ;  the  plea  is  argumentative, 
and  of  course  ill(0  :  Since  it  denies  the  tres- 
pass only  by  inference — i.  e.  only  by  denying  the  ex- 
istence of  such  a  deed  as  that  described — instead  of 
putting  the  wrongful  act  alleged  directly  in  issue. 

(r)  Co.  Litt.  303.  a.  Bac.  Abr.  Pleas,  &c.  B.  5.  (4.)  I.  5. 
Trespass,  I.  2. 

(s)  8  T.  R.  278.     2  Black.  R.  1312.     2  Tent.  166, 
(t)   Yelv.  223.     Com.  Dig.  Pleader,  E.  3. 

(8)  The  plea  stated  in  the  text  would  also  be  ill,  as  improperly 
•bjending  law  and  fact. 


GENERAL  RULES  OF  PLEADING. 


The   proper  plea,   for  the   defence  pleaded,  in   the   CHAP. 
case  here  stated,  would  be  the  general  issue.  in. 


§  30.  Argumentative  pleading  is  aided,  however, 
by  verdict,  or  on  general  denmrrer(tt).  For  the 
defectiveness  of  such  pleading  is  not  in  the  matter 
pleaded,  but  in  the  manner  of  pleading  it  ;  and  is 
therefore  only  a  fault  inform. 

§31.  It  is  for  a  similar  reason,  that  the  general 
rule  disallows  the  allegation  of  material  facts  by 
wav  of  recital;  as  under  a  'whereas.'  For  as  this 
form  of  averment  does  not  directly  assert  the  fact 
recited,  a  travese  of  the  averment  would  not  put 
the  fact  directly  in  issue.  If  therefore,  in  an  action 
of  trespass  for  an  assault  and  battery,  the  plaintiff 
should  complain,  by  saying  in  his  declaration, 
'  whereas  the  defendant  with  force  and  arms  assault- 
ed,' &c  ;  or  if  in  trespass  quare  clausum  fregit,  he 
should  declare  *  whereas  the  defendant  with  force, 
&c.  broke  and  entered  his  close  ;'  the  declaration 
would,  in  both  cases,  be  ill  (a)  (9).  For  this  mode 
of  stating  the  injury  would  not  constitute  a  positive 

(u)  Com.  Dig.  Pleader,  E.  3.  1  Saund.  274.  (n.  1.)  Aleyn, 
48.  9  Johns.  R.  314.  Con/.  Bac.  Abr.  Pleas,  B.  5.  (4). 

(t>)  Bac.  Abr.  Pleas,  &c.  B.  Tresp.  I.  2.  5.  4.  Co.  Litt.  303. 
a.  2  Salk.  636.  1  Stra.  621.  Com.  Dig.  Pleader,  C.  86. 

(9)  When  the  suit  is  by  original  writ,  (as  in  the  English  court 
of  Com.  Pleas,)  such  an  averment  in  the  declaration  is  good  — 
being  aided  by  the  recital  of  the  writ,  in  the  declaration.  (Com. 
Dig.  Pleader,  C.  86.  1  Wils.  99.  2  Ib.  203.  Fort.  376.  Bac. 
Abr.  Trespass,  I.  2 


QQ  GENERAL  RULES  OF  PLEADING. 

CHAP,    allegation  of  the  trespass  in  either  case  ;    and   the 
in.       plea  of  not  guilty  would  be  tantamount  only  to  say- 

; ing,  in  the  one  case,  '  whereas  the  defendant  did  not 

averments,  with  force  and  arms  assault,'  &c.  and  in  the  other, 
'  whereas  he  did  not  with  force,  &c.  break  and  enter 
the  plaintiff's  close.' — A  principal  reason  therefore, 
why  the  averment  of  material  facts  by  way  of  re- 
cital is  inadmissible,  is,  that  as  such  averments  do 
not  admit  of  a  direct  negative,  no  proper  precise  issue 
can  be  taken  upon  them. 

^  32.  But  in  debt  on  bond,  the  allegation  that 
*  whereas  the  defendant,  by  his  writing  obligatory, 
sealed, '&c.  '  acknowledged  himself  held  and  bound,' 
&c.  '  yet  he  has  not  paid,'  has  always  been  held  a 
sufficient  averment  of  the  execution  of  the  bond ; 
though  that  fact,  which  is  the  gist  of  the  action,  is 
stated  only  by  way  of  recital :  And  in  this  form  are 
all  the  common  precedents  of  declarations  on  bonds, 
covenants,  and  specialties  of  every  kind(w).  The 
reason  of  this  apparent  deviation  from  the  general 
rule  is  said  to  be,  that  as  the  statement  under  the 
'  whereas'  is  part  of  an  entire  sentence,  of  which 
the  latter  clause  is  a  positive  averment,  the  former 
part  is  in  construction  also  positive,  and  therefore 
capable  of  being  directly  traversed (x).  However 
this  construction  may  appear,  in  a  grammatical 
view,  it  has  always  prevailed  in  the  forms  of  plead- 
ing. 

(to)  Bac.  Abr.  Pleas,  &c.  B.  5.  (4.)—  1  Lill.  Ent.  144-187.  2 
Chitt.  PI.  151-178.  191-9. 

(x)  Bac.  Abr.  Pleas,  &c.  B.  5.  (4.) 


GENERAL  RULES  OF  PLEADING. 


§  33.     But  in  a  declaration,  the  whole  of  which    CHAP. 
may    be    denied    by  the    general  issue,    a  material;     in. 
averment,  under  a  '  whereas,'  though   formerly  held 


incurable,  is  now  amendable,  and  is  ill  only  on  spe-  averments. 
rial  demurrer(y) :       The    defect    being   not   in  the 
matter  alleged,  but  in  the  manner  of  alleging  it. 

^>  34.     The  words  pro  eo  quod,  (for  this  that) —  quod. 
quia  (because) — and  licet  (although,)  are  respective- 
ly sufficiently   direct  and  positive  for  introducing  a 
material  avermentfz) ;    as  they  are  all  considered  as 

Quare 

terms  of  affirmation.  But  the  word  '  quare"*  (where- 
fore), though  used  in  the  writ  in  certain  actions,  is 
inadmissible  in  a  material  averment  in  the  plead- 
ings(a) :  For  it  is  merely  interrogatory.  And 
therefore  a  declaration  which  begins  with  complain- 
ing of  the  defendant,  '  wherefore  with  force,  &c.  he 
broke  and  entered'  the  plaintiff's  close,  is  ill. 

^  35.  A  material  averment  may  also  be  intro- 
duced by  a  videlicit,  or  scilicit  (to  wit) ;  in  which 
case,  if  the  averment  immediately  preceding  the 
lvizS  is  direct  and  positive,  that  which  immediately 
follows  it  is  so(6).  Thus  if  the  plaintiff  in  trespass 
declares  that  the  defendant  took  and  carried  away 
his  'goods,  viz.'  such  and  such  articles  specifically 

(?/)  2  Salk.  636.  1  Stra.  621.  Com.  Dig.  Pleader,  C.  86.  2 
Stra.  1151.  1162.  1  Chitt.  PI.  375.  1  Wils.  99.  2  Mass.  R. 
358.  7  Johns.  R.  109. 

(2)  1  Saund.  117.  (n.  4.)  Com.  Dig.  Pleader,  C.  77.  1  Lev. 
194.  2  Lill.  Ent.  429.  431.  435.  2  Chitt.  PI.  369— 393. 

(a)  2  Salk.  636.     Bac.  Abr.  Pleas,  &c.  B.  5.  (4.) 

(6)  Hob.  172.     Com.  Dig.  Parols,  A.  8. 


£)3  GENERAL  RULES  OF  PLEADING. 

CHAP,    mentioned,  the    specification  under   the   '  viz.'   is   a 
in.      positive  and  traversable  averment(e).      So    also  in 
; debt  on  bond,  for  the  penal  sum  of  £1000,  if  the  de- 
averments,    fendant   pleads  that  there  is    due  on  the    bond    '  a 
much    less   sum   than   £1000,    viz.   £500,    and   no 
more,'  this  last  averment  under  the  '  viz.'  is  regarded 
as  a  direct  allegation,  and  is  traversable,  as  it  would 
have  been,  if  the  viz.  and  the  quoted  words  immedi- 
ately preceding  it,  had  been  omitted(d). 

§  36.  The  proper  office  of  ascilicit,'  or  '  videlicit' 
is  to  particularize  what  is  general  in  the  words  pre- 
ceding it,  or  in  some  other  manner  to  explain  what 
goes  before  it(e).  A  '•viz'  may  therefore  restrain 
the  generality  of  preceding  words,  but  cannot  en- 
large or  diminish  the  preceding  subject-matter '(/").  For 
in  the  former  case,  the  'viz.'  is  merely  an  explanation 
of  the  language  which  precedes  it ;  but  in  the  latter, 
it  is  repugnant  to,  or  variant  from,  the  preceding 
matter.  Thus  if  a  grant  is  made  to  '  A.  and  his 
heirs,  viz.  heirs  of  his  body,'  the  interest  granted  is 
an  estate  tail(g)  :  For  here  the  '  viz.'  is  only  expla- 
natory of  the  sense  in  which  the  word  '  heirs'  is  first 
used,  and  not  inconsistent  with  it.  But  if  one  hav- 
ing three  acres  of  land  in  the  parish  of  A.,  grants  '  all 
his  land  in  A.,  viz.  two  acres,'  the  three  acres  will 
pass(/&)  :  Or  if  he  grants  '  all  his  land'  in  the  parish 

(c)  2  Chitl.  PL  99.  272.  379.  385. 

(d)  a  Saund.  291.  b.  (n.  1.)     6  T.  R.  460.     2  Wils.  332.  335. 

(e)  Hob.  175.     2  Saund.  291.  b.  (n.  1.)     2  Wils.  332.  335. 
(/)   Hob.  172.     Com.  Dig.  Parols,  A.  8. 

(ff)  Ed- 

(ft)  lid.     2  Saund.  291.  a.  (n.  1.) 


GENERAL  RULES  OF  PLEADING.  g 

of  A.,  viz.  black-acre,  which  lies  out  of  that  parish  ;   CHAP. 
black-acre  will    not   pass    by   the   grant  (?').     For  in      in. 
both  these  cases  the  '  viz.'  is  repugnant  to  that  which 
precedes   it.     The   same    distinction  applies    to    the 
use  of  a  'viz.'  in  pleading. 

^  37.  Yet  in  the  application  of  this  general  dis- 
tinction to  the  rules  of  pleading,  there  is  one  impor- 
tant difference  to  be  observed,  (as  regards  the  use  and 
effect  of  a  '  viz.')  between  the  averment,  of  material 
and  immaterial  facts.  When  a  viz.  is  followed  by 
what  is  material,  and  necessary  to  be  alleged,  and 
preceded  by  words  of  direct  averment,  the  videlicit, 
being  regarded  as  a  positive  and  direct  allegation,  is 
therefore  traversable(k)  :  In  other  words,  a  material 
averment  under  a  viz.  is  traversable,  whenever  it 
would  have  been  so,  if  it  had  been  made  without 
a  viz.  Thus,  when  in  debt  on  bond  for  a  certain 
penal  sum,  conditioned  for  the  payment  of  a  less 
sum,  the  defendant  pleaded  that  he  was  indebted  to 
the  plaintiff,  '  in  a  large  sum  of  money,  to  wit,  the  said 
sum  in  the  said  condition  mentioned,'  and  then  al- 
leged special  matter  in  avoidance — an  exception 
was  taken  to  the  plea,  as  not  containing  any  state- 
ment, in  an  issuable  form,  of  the  sum  due  on  the 
bond  :  But  the  court  overruled  the  objection,  and 
held  the  statement  under  the  '  to  wit?  to  be  travers- 

(i]  lid.     Hob.  170. 

(k)  3  Burr.  1730.  1  Saund.  169.  170.  (n.  2.)  2  Ib.  291.  b. 
(n.  1.)  1  Black.  R.  495.  Yelv.  94,  note.  4  Johns.  R.  450. 
2  Pick.  222. 

10 


70  GENERAL  RULES  OF  PLEADING. 

CHAP.    able(7).     And  the  rule  appears  to  be  universal,  that 
in.      any  fact,  which  is  in  its  nature  traversable,  may  be 
traversed,  though  pleaded  under  a  videlidt(m). 

§  38.  It  is  apparent  from  what  has  been  said,  that 
a  material  fact  cannot  be  made  immaterial,  by  being 
pleaded  under  a  '  viz.,(n~).  Therefore,  if  an  aver- 
ment under  a  *  viz.'  contains  matter  in  itself  mate- 
rial, but  which  is  repugnant  to  what  goes  before ; 
the  pleading  is  ill(10).  Thus  where  to  an  action 
against  the  sheriff  for  an  escape,  he  pleaded  a  recap- 
tion of  the  prisoner,  on  fresh  suit,  '  before  the  exhi- 
bition of  the  bill,  viz.  on  the  8th  of  May"1  (which  was 
in  fact  after  the  bill  was  exhibited),  the  court  held 
the  plea  ill(o).  For  the  time  of  retaking  was  mate- 
rial ;  inasmuch  as  a  recaption,  after  the  exhibition  of 
the  bill,  is  no  defence  in  law  to  such  an  action. 

§  39.  As  material  facts  averred  under  a  videlicit 
are  traversable  ;  it  follows  that  they  must,  if  tra- 
versed, be  proved  :  For  nothing  is  legally  travers- 
able by  either  party,  except  what  the  adverse  party 
may  be  required  to  prove.  If  therefore  in  pleading 

(/)  2  Wils.  332.  335. 

(m)  5  T.  R.  71.  1  Ib.  656.  4  Johns.  R.  450.  1  Stra.  233. 
2  Saund.  291.  a.  c.  (n.  1.)  6  T.  R.  460.  463.  1  Saund.  169. 
170.  (n.  2.) 

(n)  lid. 

(o)  Latch,  200.  201.  2  Saund.  291.  c.  (n.  1).   1  Black.  R.495. 


(10)  On  this  point,  however,  there  have  formerly  been  some 
contradiction  and  confusion.  Latch,  200.  201.  Cro.  Jac.  135. 
154.  662.  12  Mod.  579.  580. 


GENERAL  RULES  OF  PLEADING.  J 

a  record,  or  written    instrument   of   any  kind,  the    CHAP. 
pleader  misstates  the  date  of  it,  or  otherwise  mis-      HI. 
describes  it  in  any  material  particular,  though  under 
a  videlicit,  he  must  fail  in  his  proof :  For  the  record 
or  instrument,  when  produced  in  evidence,  will,  by 
its  variance  from  the  description  of  it  in  the  plead- 
ing, appear  to  be  a  different  record  or  instrument 
from  that  pleaded (p)  (11). 

^  40.  But  if  that  which  comes  under  a  videlicit 
is  immaterial,  or  matter  of  mereybrw  ;  its  repugnancy 
to  what  goes  before  does  not  vitiate,  or  in  any  way 
affect,  the  pleading.  In  such  a  case,  the  videlicit  is 
regarded  as  wholly  nugatory  and  void,  and  is  there- 
fore rejected  as  surplusage (</)(! 2).  For  as  it  con- 
tradicts nothing  that  is  material  in  what  precedes  it, 
(if  it  did,  it  could  not  be  strictly  immaterial),  it  falls 
within  the  legal  maxim,  lutile  per  inutile  non  vitia- 
turS  And  the  pleading  will  be  good  or  ill,  precisely 

(p)  4  T.  R.  590.  et  vide  1  Ib.  656.  6  Ib.  463.  2  Saund.  291. 
b.  (n.  1). 

(q]  1  Lev.  195.  1  Saund.  116.  287.  2  Ib.  291.  (n.  1).  Com. 
Dig.  Pleader,  C.  19. 

(11)  The  term  *  variance'  signifies,  in   law,  a  discrepancy  be- 
tween the  statement  or  description  of  a  record,  written  instrument, 
or  express  contract  in  pleading,  and  the  record,  instrument,  &c. 
itself,  as  shown  in  evidence. 

(12)  In  most  of  the  numerous  cases,  usually  cited  to  this  point, 
the  question  has  arisen  after  verdict.     It  was  directly  decided, 
however,  in  the  case  cited    above  from  1    Lev.   194-5,   and   1 
Saund.  116,  (which  was  determined  upon  great  deliberation,  and 
after  several  arguments),  that  the  rule  holds  as  well  before,  as 
after  voridct. 


GENERAL  RULES  OF  PLEADING. 


CHAP.  as  it  would  have  been,  if  the  'videlicit',  including 
in.  the  averment  under  it,  had  been  omitted  or  struck 
out.  Thus,  if  in  trover  the  plaintiff  declares  that 
I  he  was  possessed  of  the  goods  in  question,  on  the 
'  tenth  day  of  May,  in  such  a  year,  and  that  the  de- 
fendant, '  postea'  (afterwards)  '  to  wit,  on  the  frst 
day'  of  the  same  month,  converted  them,  the  '  vide- 
licit'  will  be  rejected  as  surplusage  except  on  special 
demurrer  (r).  For  the  particular  day  of  the  conver- 
sion being  immaterial,  and  that  stated  under  the  '  vi- 
delicit'1 being  repugnant  to  the  preceding  'postea,'  the 
'  videlicit'  is  held  to  be  void.  The  consequence  is, 
that  the  declaration  will  stand,  in  regard  to  its  legal 
sufficiency,  as  if  the  plaintiff  had  alleged  that  he  lost 
the  goods  on  the  10th  day  of  May,  and  that  the  de- 
fendant '  afterwards  converted  them,'  (omitting  the 
videlicit,  and  stating  no  particular  day);  in  which 
case,  the  declaration  would  be  good,  unless  specially 
demurred  to(s).  So  also,  if  the  plaintiff  in  ejectment 
declares  on  a  lease  dated  the  tenth  day  of  May,  by 
virtue  of  which  he  entered,  and  alleges  that  the  de- 
fendant '  afterwards,  to  wit,  on  the  first  day'  of  the 
same  month,  ejected  him  ;  the  '  videlicit'  will  be  re- 
jected, as  in  the  last  case  ;  and  the  effect  will  be  the 
same(^),  and  for  the  same  reason.  It  is  hardly 
necessary  perhaps  to  add,  that  an  immaterial  '  vide- 
licit' cannot  be  traversed,  and  need  not  be  proved(u). 

(/•)  Com.  Dig.  Pleader,  C.  19.  Cro.  Jac.  428.  135.  1  Lev. 
195.  12  Mod.  579.  Stra.  232.  1095. 

(s)  1  Lev.  195.  1  Samid.  236.  237,  a.  Com.  Dig.  Pleader, 
C.  19.  vide  Cro.  Jac.  96.  429. 

(0   Cro.  Jac.  96.      Com.  Dig.  Pleader,  C.  19. 

(M)  1  Black.  Rep.  495.  per  Blackstone,  arg.  2  Saund.  291. 
c.  (n.  1).  3  T.  R.  68.  Vid.  3  M.  &  S.  175. 


GENERAL  RULES  OF  PLEADING.  73 

§  41.  But  a  videlicit  can  never  be  rejected,  unless  JCHAP. 
repugnant  to  what   goes   before   it(u).      For  when  I    m. 

consistent  with    what  precedes  it,  there  can   be    no 

more  propriety  in  rejecting  it,  than  there  would  be  in 
rejecting  and  treating  as  surplusage  any,  and  every 
other  averment,  which  the  pleader  might  find  to  ope- 
rate against  himself. 

^  42.  The  general  rule,  (ante,   ^  28),    requiring  Material 
material  facts  to  be  alleged  in  terms   of  direct  and  tywayof/e- 

.         i  ,  .  ,     cital,  are   in 

positive  averment,  is  itself  by  no  means  universal,  some  cases 
For  in  declarations,  facts  which  are  material,  and  " 
even  of  the  gist  of  the  action,  may  in  some  in- 
stances be  stated  under  a  '  whereas.'  And  the  dis- 
tinction, collectible  from  the  precedents,  appears  to 
be,  that  all  those  facts  which  are  directly  denied  by 
the  terms  of  the  general  issue,  or  which  may,  by  the 
established  usage  of  pleading,  be  specially  traversed, 
must  be  averred  in  direct  and  positive  terms  :  But 
the  facts,  however  material,  which  are  not  directly 
denied  by  the  terms  of  the  general  issue,  though  liable 
to  be  contested  under  it,  and  which,  according  to 
the  usage  of  pleading,  cannot  be  specially  traversed, 
may  be  alleged  in  the  declaration  by  way  of  reci- 
tal. 

^  43.  The  reason  of  this  distinction  appears  to 
be,  that  as  facts  of  the  former  class  are  directly  tra- 
versable,  either  by  the  general  or  a  special  issue ; 
they  ought  to  be  so  alleged,  that  the  issue  which 
may  be  taken  upon  them  shall  consist,  (as  all  issues 

(»)  5  East,  244.      1  Saund.  169. 


74  GENERAL  RULES  OF  PLEADING. 

CH\P.    regularly  must),  of  a  direct  affirmative  on  one  side, 
in.      and  a  direct  negative  on  the  other — which  could  not 

be  the  case,  if  they  were  alleged  by  way  of  recital : 

Whereas,  facts  of  the  latter  class — i.  e.  all  material 
facts,  which,  though  not  in  terms  denied  by  the  gen- 
eral issue,  are  yet  liable  to  be  contested  under  it, 
and  which  cannot  be  made  the  subject  of  a  special 
traverse — may  as  well  be  alleged  by  way  of  recital, 
as  in  direct  and  positive  terms ;  because  all  such 
facts  may  always  be  controverted,  without  being  di- 
rectly and  in  terms  put  in  issue.  And  as  it  can  ne- 
ver be  necessary,  in  pleading,  to  answer  the  averment 
of  any  such  fact,  by  a  direct  negative ;  it  can,  of 
course,  never  be  necessary  to  make  the  averment  in 
terms  of  direct  affirmation. 

§  44.  To  illustrate  this  distinction : — In  tres- 
pass quare  clausum  fregit,  or  for  taking  and  carrying 
away  the  plaintiff's  goods,  the  forcible  breaking  and 
entering  of  the  plaintiff's  close,  in  the  one  case,  and 
the  forcible  taking  and  carrying  away  of  his  goods, 
in  the  other,  must  be  directly  and  positively  alleged 
in  the  declaration(io).  In  trespass  for  an  assault 
and  battery,  the  act  of  assaulting  and  beating  must  be 
averred  in  the  same  manner(V).  In  the  same  man- 
ner also  must  be  alleged  the  conversion  in  trover(y) 
— the  ouster  in  ejectment(z) — the  erection  of  the 
nuisance,  in  an  action  for  that  injury(o) — and  the 

(w)   1  Lil.   Ent.  431.    453.      2  Chitt.  PI.  382.  391.  393.  377. 

(x)   1  Lil.  Ent.  429.  436.  455.  2  Salk.  636.  2  Chitt.  PI.  467-8. 

(y)  1  Lil.  Ent.  70.     2  Chitt.  PI.  323,  ct  ull. 

(z)  2  Chitt.  PI.  395.  402. 

(a)  2  Chitt.  PI.  240-1.  331-8. 


GENERAL  RULES  OF  PLEADING.  75 

taking  of   the  cattle  or  goods,  in  replevin(6) — the    CHAP. 
neglect  of  a  bailee,   in  a  special  action  on  the  case,       in. 

by  the  bailor,   for  damage  occasioned  by  such  neg-  

lect(c) — the  being  indebted,  in  debt  on  simple  con- 
tract^/)— the  permitting  of  the  escape,  in  an  action 
against  a  sheriff  for  an  escape,  &c.(e)  For  the 
acts,  or  facts,  specified  in  these  examples  (to  which 
many  others,  falling  within  the  same  rule,  might  be 
added)  are  such  as  the  general  issue,  in  the  several 
cases  supposed,  would  directly  and  necessarily  deny. 
This  will  be  very  obvious,  when  it  is  considered  that 
in  no  one  of  these  examples,  can  the  fact  specified 
be  admitted  by  the  defendant  consistently  with  the 
general  issue.  And  as  the  particular  fact,  mentioned 
in  each  of  these  examples,  is  liable  to  be  thus  directly 
denied  by  the  general  issue  ;  it  must  be  directly  and 
positively  alleged.  In  assumpsit  also,  the  promise 
must  be  stated,  in  terms  direct  and  positive^/]) ;  be- 
cause the  general  issue  (non  assumpsit)  purports  to 
be  a  direct  denial  of  the  promise.  (13). 

§  45.     So  also  in  declaring  on  specialties — as  in   / 
covenant  broken,  debt  on  a  covenant,  or  a  special 

(b)  2  Lil.  Ent.  356.  369.     2  Chitt.  PI.  364—368. 

(c)  2  Chitt.  PI.  103-125.  274-5. 

(d)  2  Chitt.  PI.  141.  237. 

(e)  1  Lii.  Ent.  60.     2   Chitt.  PI.  147-151.  299-302. 
(/)  Chitt.  on  Bills,  tit.  Precedents,  passim. 

(13)  The  application  of  the  general  rule  to  the  action  of  as- 
sumpsit requires  a  distinct  explanation  ;  for  which  vide  post.  §  47. 
and  note  (15). 


6  GENERAL  RULES  OF  PLEADING. 

CHAP,  declaration  on  a  bond (1'4)— if  the  right  of  action 
in.  depends  on  a  condition  precedent ;  performance  of  the 
condition  must  be  alleged,  in  terms  of  direct  aver- 
ment^). For  as  the  fact  of  preformance,  on  the 
plaintiff's  part,  is  of  the  gist  of  his  action  ;  the  defend- 
ant must  be  at  liberty  in  some  way  to  contest  it. 
But  as  he  cannot  do  this  under  the  plea  of  non  est 
factum — inasmuch  as  that  plea  is  not  adapted  to 
such  a  defence  ;  he  must  of  course  be  at  liberty  to 
take  a  special  issue  upon  the  plaintiff's  allegation  of 
preformance,  by  a  traverse.  That  allegation  must 
therefore,  be  so  made,  that  an  issue,  thus  taken  upon 
it,  may  consist  of  a  direct  affirmative  on  one  side, 
and  a  direct  negative  on  the  other.  The  same  rule 
holds,  as  to  all  material  facts  alleged  in  the  declara- 
tion, and  which  cannot  be  controverted  under  the 
general  issue. 

§  46.  And  even'  in  assumpsit,  in  which,  (for  rea- 
sons peculiar  to  that  action)  advantage  may  be 
taken  of  a  condition  precedent,  under  the  general 
issue  ;  performance  of  such  a  condition  must,  never- 
theless, be  averred  in  direct  terms  (A)  :  Because  the 
defendant  may,  if  he  so  elects,  take  a  special  issue 
upon  the  fact  of  performance.  Thus,  if  A.  promises 
to  pay  money  to  B.,  in  consideration  of  B.'s  hereafter 

(g)  2  Chitt.  PL  197.  485-6. 

(h]  Hob.  106.  Cro.  Eliz.  201.  Com.  Dig.  Pleader,G.  11.  C. 
69. 

(14)  A  special  declaration  on  a  bond  is  one,  which  counts  as 
well  on  the  condition,  as  the  penal  part,  and  assigns  a  breach 
of  the  condition.  (Bac.  Abr.  Pleas,  &c.  B.  1.  Doct.  PI.  84.) 


GENERAL  RULES  OF  PLEADING.  77 

delivering  certain  goods  to  A.,  and  B.   brings  as-    CHAP. 
sumpsit    for    the   money ;    he  must  directly    allege       in. 

the  delivery  of  the   goods,  according   to   the    agree-  

rnent.  For  the  delivery  of  the,  goods  is  a  condition 
precedent,  and  therefore  specially  traversable.  So 
also,  if  one  is  bound  by  his  promise  to  pay  the  debt 
of  a  stranger  upon  request,  or  upon  notice  given  of 
its  amount;  a  request  or  notice  must,  for  the  same 
reason,  be  specially  and  directly  alleged  in  the  de- ' 
claration(i). 

^47.  But  the  consideration  in  assumpsit,  though 
of  the  gist  of  the  action,  may,  when  executed,  (as  in 
the  case  of  a  liability  existing  at  the  time  of  the  alleg- 
ed promise),  be  stated  under  a  '  whereas'.  And  in 
this  form  is  the  consideration  in  such  cases  laid,  in  the 
precedenta(fc).  For  the  consideration  is  not  directly 
denied  by  the  terms  of  the  plea  of  non  assumpsit ;  and 
cannot  be  made  the  subject  of  a  special  traverse(T) 

— because   such   a  traverse   would  be,  in  effect,  the 

i  ' 

general  issue  informally  pleaded,  and  therefore  inad- 
missible. There  is,  consequently,  according  to  the 
foregoing  principles,  no  need  of  a  direct  averment, 
in  stating  the  consideration.  As,  however,  it  is  of 
the  substance  of  the  cause  of  action,  the  defendant 

(»')  lid.  1  Saund.  32.  Com.  Dig.  Condition,  L.  11.  Pleader, 
73.  3  Salk.  308.  Doug.  21. 

(fc)  1  Lill.  Ent.  in  assumpsit,  passim.  Chitt.  on  bills,  tit.  Pre- 
cedents, passim.  f» 

(/)   Com.   Dig.    Pleader,  G.    11.14.      Cro.    Eliz.    201.      Hob. 
106.  Hetl.  50.     Dong.  21.     Bac.  Abr.  Pleas,  &c.  H.  5. 
11 


73  GENERAL  RULES  OF  PLEADING. 

CHAP,    is?  °f  course,  at  liberty  to  deny  it :  But  he  must  do 
in.      this,  if  at  all,  under  the  general  issue(15). 

^  48.  Thus  also,  and  for  the  same  reason,  the 
plaintiff's  property  (or  his  lawful  possession,  which 
implies  a  property,)  in  the  goods  for  which  trover  is 
brought — his  possession  of,  or  interest  in  the  house 
or  land,  alleged  to  be  injured,  in  an  action  for  a  nui- 
sance— his  lease,  in  ejectment — his  delivery  of  the 
goods  to  the  defendant,  in  a  special  action  on  the 
case,  for  negligence,  against  the  latter  as  bailee — 
(to  which  various  other  examples,  of  a  similar  kind, 
might  be  added) — may  respectively  be  stated  in 
the  declaration,  under  a  '  whereas'(m).  For  none 
of  these  particular  facts  are  directly  denied,  in  any 
of  the  several  cases  mentioned,  by  the  plea  of  not 
guilty ;  indeed  they  may  respectively  be  admitted 
by  the  defendant,  consistently  with  that  plea.  And 

(m)  Vide  References^  Ante,  §  44,  from  (?/)  to  (e).  Bac.  Abr. 
Pleas,  &c.  B.  4. 

(15)  It  is  true  that  in  special  assumpsit,  (i.  e.  assumpsit  upon 
an  express  promise),  the  defendant  may,  under  the  general  issue, 
admit  the  promise,  without  destroying  the  plea  ;  and  still  deny  or 
impeach  the  consideration  ;  or  show  that  the  promise  has  been 
performed,  released,  or  in  any  way  extinguished.  But  this  ap- 
pears to  be  in  consequence  of  an  anomaly  in  the  pleadings,  in  this 
particular  action ;  or  rather,  of  a  deviation  from  the  strict  original 
principles  of  pleading — occasioned  by  confounding  the  pleadings, 
on  the  part  of  the  defendant,  in  special  afgpmpsit,  with  those  in 
general  or  indebitalus  assumpsit,  and  thus  giving  the  same  mean- 
ing and  effect  to  the  general  issue,  in  the  former  as  in  the  latter.  , 
(Vid.  1  Mod.  210 ;  and  post.  chap,  vi,  §§  46.  47.  48.  49.) 


GENERAL  RULES  OF  PLEADING.  79 

as  a  special  traverse  of  either  of  them  would  be  im-    CHAP. 
proper,  as  being  an  informal  general  issue  ;    it  is  ap-       m. 

parent  from  what  has  been  said  before,  that  there  

can  be  no  necessity  for  stating  any  of  them,  by  way 
of  direct  averment.  They  are  severally  liable,  how- 
ever, to  be  contested (1 6) ;  but  this  can  be  done 
only  in  evidence,  under  the  general  issue  :  And  if  so 
contested,  they  must  respectively  be  proved ;  or  the 
plaintiff  must  fail  in  his  action.  It  is  therefore  man- 
ifest, that  all  the  facts  just  specified  are  in  strict- 
ness material,  in  the  several  cases  supposed,  though 
usually  classed  with  matters  of  inducement. 

&  49.     This    distinction,    however,   is  applicable  Material 

1  averments 

only  to  the  declaration.     In  all  the  subsequent  plead-  in  the  Plea> 

J  &c.  must  al- 

ings,  as  the  plea  in  bar,  replication,  &c.  the  general  ways  bfr  di- 
rule,  requiring  material  facts  to  be  alleged  directly 
and  positively,  admits  of  no  exception(w) :  For  as 
there  is  no  general  issue  to  any  of  these  subsequent 
pleadings(17)  ;  the  only  mode,  in  general,  of  deny- 
ing any  of  them,  is  by  precisely  traversing  some  or 
all  of  the  particular  issuable  facts  alleged  in  them. 

(n)  Lawe's  PI.  134. 

(16)  In  the  modern  English  ejectment,  the  real  defendant  is 
not  indeed  permitted,  under  the  common  rule,  to  deny  the  fictitious 
lease,  counted  upon  in  the  declaration.     But  this  is  merely  a  posi- 
tive  regulation,  by  rule  of  Court ;  and  does  not  affect   the   cor- 
rectness of  the  position  in  the  text,  so  far  as  regards  the  original 
principles  of  the  actior 

(17)  A  replication,  containing  a  new   assignment,  may  indeed 
be  answered  by  the  general  issue.     But  a  new  assignment  is  in 
the  nature  of  a  new  declaration.     (Post.  ch.  6.  Part  2.) 


8Q_  GENERAL  RULES  OF  PLEAUIMi. 

CHAP.     Hence   the  allegation  of  every  such  fact  must  be  so 
in.      framed,  as  to  admit  of  a  direct  negative  answer. 

&  50.   It   is    apparent    from   the   preceding    rules, 

Inducement,  * 

howpieada-  that  matter  of  mere  inducement,  in  the  declaration, 

ble. 

may  always  be  stated  by  way  of  recital.  For  as 
such  matter  neither  requires  nor  admits  of  a  direct 
answer  of  any  kind,  in  pleading  ;  it  can  never  require 
a  direct  allegation.  This  rule,  however,  must  not 
be  understood  to  apply,  without  exception,  to  what 
is  termed  the  inducement  to  a  traverse,  in  the  subse- 
quent pleadings.  • 

Certainty.  CK-I  •  •••HIT 

^  51.  An  important  requisite,  in  all  pleading,  is 
certainty '(0).  This  requisite  implies,  that  the  mat- 
ter pleaded  must  be  clearly  and  distinctly  stated  ; 
so  that  it  may  be  fully  understood  by  the  adverse 
party,  the  counsel,  the  jury,  and  the  judges  ;  and 
especially,  (as  regards  the  declaration),  that  the  de- 
fendant may  be  enabled  to  plead  the  judgment, 
which  may  be  rendered  in  the  cause,  in  bar  of  any 
subsequent  action  for  the  same  eauseQ?).  For  if  a 
vague  or  partial  description  of  the  matter  in  contro- 
versy, in  a  given  case,  were  allowed  ;  and  in  a  sub- 
sequent suit  of  the  same  thing,  the  declaration  should 
contain  a  full  and  precise  description  of  it ;  the  cause 
of  action,  though  actually  the  same  in  both  cases, 
would  not  appear,  from  a  comparison  of  the  two 
records,  to  be  so. 

(o)  Bac.  Abr.  Pleas,  &c.  B.  1.      Hob.  295.     5  Co.  34-5. 
(p)2Ld.    Ray.    1411.     4  Burr.    2456.     5  Co.    34.      1    Day, 
315.     Bac.  Abr.  TYom-,  F.  1.     Reg.  PI.  4. 


GENERAL  RULES  OF  PLEADING.  g] 

^  52.  Certainty  in  pleading  is,  according  to  Lord    CHAP. 
Coke,  of  three  sorts  or  degrees  :  viz.   '  Certainty  to      in. 

a  common  intent' — *  certainty  to   a  certain  intent  in  

general' — and  '  certainty  to  a  certain  intent  in  every  cerfelaty. 
particular'' (q).  These  degrees,  which  it  would  be 
difficult  to  distinguish  by  exact  logical  definitions, 
have  been  sometimes  treated  as  idle  and  unintelligi- 
ble refinements.  It  seems,  agreed,  however,  by  all 
common-law  jurists,  that  there  are  different  degrees 
of  certainty,  (however  they  may  be  denominated), 
required  for  different  kinds  or  classes  of  pleas  :  And 
the  objection  to  Lord  Coke's  denominations  of  them 
is  not,  that  the  law  does  not  recognize  any  distinc- 
tion, in  respect  to  the  requisite  degree  of  certainty 
in  different  branches  of  pleading  ;  but  that  the  lan- 
guage, in  which  he  has  endeavored  to  express  the 
distinction,  is  not  sufficiently  precise  and  intelligible, 
to  convey  any  very  definite  notion  of  it.  The  ob- 
jection thus  understood,  is  undoubtedly  well  found- 
ed ;  but  we  are  not,  for  this  reason,  to  discard  all 
distinction  between  different  degrees  of  certainty  in 
pleading(r)  :  Since  such  degrees  are  not  only  re- 
cognized in  legal  theory  ;  but  practically  observed, 
to  a  certain  extent  at  least,  in  all  the  authoritative 
precedents.  Without  attempting,  however,  to  frame 
exact  legal  definitions  of  these  different  degrees  of 
certainty,  (which — as  they  are  merely  relative,  and 
referrible  to  no  fixed  standard — would  seem  impossi- 
ble)— it  may  suffice,  perhaps,  to  present  the  follow- 
ing general  explanation  of  them  : 

(7)  Co.  Lilt.  303.  a.     Corn.  Dig.  Pleader,  C.  17. 
(r)  Per  Buller,  J.  2  H.  Black.  530. 


2  GENERAL  RULES  OF  PLEADING. 

CHAP.  §  53.  The  first  degree  of  certainty,  in  Lord 
in.  Coke's  enumeration,  and  which  he  denotes  '  cer- 

tainty  to  a  common  intent,'  is  the  lowest  which  the 

°  rules  of  pleading  in  any  instance  allow.  This  de- 
gree is  sufficient  only  in  pleas  in  bar,  rejoinders,  and 
such  other  pleadings,  on  the  part  of  the  defendant, 
as  go  to  the  action(s) ;  but  not  in  dilatory  pleas. 
The  second  degree,  or  '  certainty  to  a  certain  intent 
in  general,'  is  higher  than  the  former,  and  is  required 
in  counts,  replications,  and  other  pleadings  on  the 
part  of  the  plaintiff';  as  also  in  indictments  and  in- 
formations^) :  It  being  deemed  reasonable,  that 
such  pleadings  as  assert  a  charge,  either  criminal  or 
civil,  against  the  adverse  party,  should  be  construed 
with  greater  strictness,  than  those  which  state  his 
defence  or  excuse. 

^  54.  More  precise  explanations  of  these  two 
degrees  of  certainty  have,  however,  been  attempted. 
Thus,  Mr.  Justice  JBuller  observes,  '  By  a  common  in- 
tent I  understand,  that  when  words  are  used,  which 
will  bear  a  natural  sense,  and  also  an  artificial  one, 
or  one  to  be  made  out  by  argument  or  inference,  the 
natural  sense  shall  prevail.  It  is  simply  a  rule  of 
construction,  and  not  of  addition :  Common  intent 
cannot  add  to  a  sentence  words  which  are  omit- 
ted'^). But  where  *  certainty  to  a  certain  intent 
in  general'  is  required,  if  words  are  used  which  will 

(s)  Cowp.  682.     Doug.  159.     2  H.  Black.  530. 
(0  lid.  Co.  Litt.  303.  a.     Com.  Dig.  Pleader,  C.  24.     2  Lill. 
Ab.  377. 

(«)  2  H.  Black.  530. 


GENERAL  RULES  OF  PLEADING.  33 

bear  these  two  senses,  they  may  be  taken,  it  seems,    CHAP. 
either  way  against  the  party  pleading ;    though  as       in. 

against  the  adverse  party,  they  can  be  understood  

only  in  their  natural  sense  :  So  that  if  either  sense  cerfafnty.0 
will  operate  against  the  pleader,  his  pleading  is  de- 
fective^). The  same  distinguished  judge  again 
observes,  that  by  the  second  degree  of  certainty  is 
meant,  '  what,  upon  a  fair  and  reasonable  construc- 
tion, may  be  called  certain,  without  recurring  to  pos- 
sible facts,  which  do  not  appear\w)  ;  i.  e.  without 
denying,  or  avoiding  by  anticipation,  possible  facts, 
which  may  operate  against  him  ;  and  on  the  other 
hand,  without  the  aid  of  any  supposable  facts  or 
circumstances,  not  alleged  by  him. 

§  55.  These  expositions  appear  correct,  as  far  as 
they  extend :  In  other  words,  they  conform  to 
the  points  adjudged,  in  the  particular  cases,  to 
which  they  relate  ;  but  if  considered  as  intended  to 
furnish  a  comprehensive  criterion,  applicable  to  all 
cases  to  which  they  may  extend,  they  will  often  be 
found,  it  is  believed,  to  afford  but  little  assistance  to 
the  inquirer.  The  only  practicable  method,  perhaps, 
of  acquiring  a  competent  knowledge  of  the  distinc- 
tion in  question,  is  a  careful  and  thorough  examina- 
tion of  precedents. 

^  56.  It  is  however  material  to  be  observed, 
that  neither  of  these  two  first  degrees  of  certainty 

(»)  Co.  Litt.  303.     Lawes'  PI.  54. 
(w)  Doug.  159. 


84 


CHAP. 
III. 

Degrees  of 
certainty. 


GENERAL  RULES  OF  PLEADING. 

requires  the  pleader  to  allege  any  thing  more  than 
is  necessary  to  constitute,  prima  facie,  a  right  of 
action,  or  a  legal  defence(.r).  He  is,  therefore,  not 
obliged  to  deny  or  avoid,  by  anticipation)  any  of  the 
possible  answers  which  may  be  given,  on  the  other 
side,  to  the  matter  alleged  in  his  pleading.  And 
therefore  in  declaring  on  a  contract,  the  plaintiff  is 
not  bound  to  aver  that  the  defendant,  at  the  time 
of  contracting,  was  not  an  infant,  or  feme  covert — or 
that  the  contract  was  not  obtained  by  fraud,  or  du- 
ress, or  has  not  been  released — or  any  other  such 
special  matter  as  might,  if  alleged  and  proved  on 
the  other  side,  defeat  this  action.  For  if  any  such 
matter  exists,  it  is  matter  of  defence,  to  be  shown 
by  the  defendant.  And  the  same  principle  governs, 
in  special  pleas  in  bar,  and  other  pleadings  to  the 
action,  on  the  part  of  the  defendant. — It  is  neces- 
sary indeed  for  a  plaintiff,  declaring  on  contract,  to 
allege  that  the  debt  has  not  been  paid,  or  the  agree- 
ment not  performed — not,  however,  by  way  of 
anticipating  the  defence  of  payment  or  performance, 
but  because,  without  such  an  allegation,  no  breach 
of  the  contract,  and  of  course  no  prima  facie  right 
of  action,  will  appear  in  the  declaration. 

^  57.  Certainty  of  the  third  sort,  or  '  to  a  certain 
intent  in  every  particular,1  requires  the  utmost  full- 
ness and  particularity  of  statement,  as  well  as  the 
highest  attainable  accuracy  and  precision — leaving, 

(x)  2  Wils.  100.  2  Burr.  1037.   1  Ld.  Ray.  400.   1  Saund.  299. 


GENERAL  RULES  OF  PLEADING.  85 

on  the  one   hand,  nothing  to  be  supplied  by  intend-     CHAP. 
ment  or  construction  ;  and   on  the  other,  no  suppos-      in. 

able   special   answer  unobviated(?/).     The    rule,   re-  

quiring  this  degree  of  certainty,  is  a  rule  not  of  cerfaimy. 
« construction1  only,  but  also  of  '  addition ;'  i.  e.  it 
requires  the  pleader,  not  only  to  answer  fully  what 
is  necessary  to  be  answered ;  but  also  to  anticipate 
and  exclude  all  such  supposable  matter,  as  would, 
if  alleged  on  the  opposite  side,  defeat  his  plea(z). 
This  last  requisite  affords  a  clear  and  marked  dis- 
tinction between  this,  and  the  two  former  kinds  of 
certainty.  For  in  those  two,  nothing  more  is  neces- 
sary, in  general,  than  to  answer  fully  the  substance 
of  what  is  actually  affirmed  by  the  adverse  party — 
or  at  most  to  make  out  a  claim  or  defence,  prima 
facie  sufficient ;  without  anticipating  other  matters, 
not  already  appearing  in  the  pleadings,  but  which 
may  possibly  be  alleged  in  reply. 

^  58.  This  third  and  highest  degree  of  certainty 
is  required  only  in  such  pleas  as  are  odious  or  unfa- 
vorably regarded  in  the  law  :  viz.  pleas  in  estoppel, 
and  dilatory  pleas(a).  The  former  are  so  regarded 
because  their  effect  is  to  preclude  the  adverse  party 
from  averring  even  the  truth,  if  inconsistent  with  the 
estoppel  pleaded  (6)  ;  and  the  latter,  because  their 

(t/)  Co.  Lilt.  352.  b. 

(*)  Willes,  554.      Lawes'  PI.  55. 

(a)  Bac.  Abr.  Pleas,  &c.  I.  11.   Cro.  Jac.  82.   2  Saund.  209. 
b.     8  T.  R.  167.     3  Ib.  185-6.     5  Ib.  487.     Doug.  159.   2  II. 
Black.     530.    Willes,  554.     Lawes'  PI.  56.   107.   134.     Com. 
Dig.  Estoppel,  E.  4. 

(b)  Co.  Litt.  303.  a.  352.  b.     Lawes'  PI.  55. 

12 


86  GENERAL  RULES  OF  PLEADING. 

CHAP,    object  is  to  defeat  suits  upon  grounds  unconnected 
in.      with  their  merits. 

certainty?  ^  59.  It  has  been  said,  indeed,  that  the  highest 
degree  of  certainty  is  required  only  in  pleas  of  estop- 
pel^. So  far  as  regards  pleadings  which  go,  on 
either  side,  to  the  right  of  action,  the  proposition  is 
undoubtedly  correct  ;  and  in  this  limited  sense  it 
was,  probably,  meant  to  be  understood.  For  it  is 
agreed  by  all,  that  no  other  plea  of  that  class,  except 
a  plea  in  estoppel,  requires  the  highest  degree  of  cer- 
tainty. It  is  clear,  however,  that  dilatory  pleas  in- 
general  require  at  least  the  same  certainty  as  pleas  in 
estoppel.  If,  for  example,  the  defendant  is  misnamed 
in  the  writ  or  declaration,  (as  if  A.  is  sued  by  the 
name  of  B.);  it  is  not  sufficient  for  the  defendant  to 
allege  in  his  plea,  that  his  name  is  not  B.  :  He  must 
also  show  in  his  plea  that  his  true  name  is  A.,  and 
must  aver  that  he  was,  at  the  time  of  the  writ  pur- 
chased (of),  known  and  called  by  the  latter  name  ; 
and  must,  moreover,  subjoin  a  traverse,  that  he  was 
known  or  called  by  the  name  of  B.(e) — thus  ex- 
cluding, by  anticipation,  every  supposition  which 
could  justify  the  plaintiff  in  giving  him  the  name  of 
B.  This  example  will  illustrate  the  position,  that 
the  rule  requiring  the  highest  degree  of  certainty,  is 
a  rule  of  addition  as  well  as  construction.  (Vid.  ch. 
5,  §  45.) 

(c)  2  H.  Black.  530. 

(d)  1  Salk.  7.      Bac.  Abr.  Pleas,  &e.  F.  3. 

(«)  Willes,  554.  1  Lill.  Ent.  6.  2  Chitt.  PI.  418.  3  T.  R. 
185-6.  5  Ib.  487.  Com.  Dig.  Abatement,  I.  11.  Lawes' PI. 
107.  2  H.  Black.  530. 


GENERAL  RULES  OF  PLEADING.  87 

^  60.  The  certainty  required   in  pleading  relates    CHAP. 
chiefly   to  parties,  time,  place,   and  subject-matter.       in. 

For    certainty,    as   regards    the   subject-matter,    the  

reader  is  referred  to  the  Division,  Declaration,  (ch.  in^haf7' 
4). — The  parties  should  be  described  by  their  pro-  necess^! 
per  names(f):  Such  a  description   being  necessary  AS  to  the 
for  the  purpose  of  identifying  them.     And  no  other  P 
form  of  description,  it  seems,  can  supply  the  omis- 
sion of   their    proper  names.     If  therefore    two  or 
more    persons  are  sued,  as  copartners  in  trade  ;    a 
description  of  them,  by  their  partnership  firm,  or  the 
name    of  their  house,  without  their  proper  names, 
seems  clearly  insufficient(^).      For   the  style  of  a 
partnership,  being  entirely  arbitrary,  may  not    con- 
tain the  proper  name  of  either  of  its  members. 

§61.  But  when  a  corporation  is  a  party,  the 
only  proper  mode  of  describing  it,  is  by  its  corpo- 
rate name(/i)  :  This  being  the  only  name  or  de- 
scription, by  which  a  body  politic  is  known  in 
Jaw(«).  For  the  law  takes  no  notice  of  the  indi- 
vidual members  of  a  corporation,  as  such,  except 
when  the  individual  right  of  a  corporator  is  the  sub- 
ject in  question. 

^  62.  When  the  name  of  either  party,  having 
been  once  introduced  in  the  pleadings,  is  afterwards 
repeated,  the  repetition  of  it  must  be  accompanied 

(/)  Com.  Dig.  Pleader,  C.  17. 

(g)  8  T.  R.  508. 

(/i)  2  Stra.  787.  2  Ld.  Ray.  1515.  Com.  Dig.  Pleader,  C.  18. 

(i)   1  Black.  Com.  474-5. 


88  GENERAL  RULES  OF  PLEADING. 

CHAP,    with   some  such    term  of  reference,  as  may  identify 
in.       the  person  named   in  the   latter   instance,  as  the  one 

• before   named — as  by  the   word   '  said,'   '  aforesaid,' 

as'uTpai-  or  some  other  term  of  similar  import :  Otherwise 
the  latter  description  will  be  ill  for  want  of  cer- 
tainty (A;).  But  when  there  are  two  or  more  ante- 
cedent persons  to  whom,  or  subjects  to  which  it 
may  be  referred,  the  word  '  said,'  '  aforesaid,'  &c. 
does  not  alone  import  sufficient  certainty(7).  In 
such  cases,  it  is  necessary  to  use  the  words  '  first 
aforesaid,'  '  last  aforesaid,'  or  other  terms  of  equr- 
valent  import (m). 

Certainty  ^  63.  It  is  a  general  rule  of  pleading  in  personal 
actions,  that  the  time  of  every  traversable  fact  must 
be  stated(ft);  i.  e.  that  every  such  fact  must  be 
alleged  to  have  taken  place  on  some  particular  day. 
This  rule  seems  to  be  designed  merely  to  promote 
certainty  in  the  pleadings  ;  but  in  a  great  proportion 
of  the  instances  which  fall  within  the  rule,  very  lit- 
tle, if  any,  practical  certainty  can  result  from  the  ob- 
servance of  it.  For  where  the  time  is  immaterial, 
the  pleader  is  of  course  not  confined  in  his  allega- 
tions to  the  true  time,  nor  in  his  proof  to  the  time 
alleged(o).  He  is  not  confined  to  the  true  time  in 
pleading,  where  the  time  is  immaterial,  because  he 
is  not,  in  such  a  case,  obliged  to  show  in  evidence 

(k)  2  Lev.  207.     Com   Dig.  Pleader,  C.  18. 
(/)  8  T.  R.  178.     2  East,  66.     Cro.  Eliz.  267.     2  Ld.  Ray. 
888.     1  B.  &  A.  327.     Com.  Dig.  Pleader,  C.  18. 
(m)  8  T.  R.  178. 

(n)   Com.  Dig.  Pleader,  C.  19.     Yelv.  94. 
(o)  Co.  Litt.  283.  a.     1  Saund.  24.  (n.  1.) 


GENERAL  RULES  OF  PLEADING.  89 

the    precise    day,   on  which  the    fact   alleged   took    CHAP. 
place — which   might    often,   indeed,    be   impossible.       in. 

And  where    the   day  is   not  material   in   evidence,  it  ; 

cannot  be  so  in  pleading(p).  In  such  cases,  there-  as  to  time, 
fore,  the  adverse  party  and  the  court  are  but  little 
better  informed,  by  the  laying  of  a  particular  day, 
of  the  actual  time  when  the  fact  alleged  took  place, 
or  to  what  day  the  pleader's  proof  will  apply,  than 
if  no  particular  time  had  been  stated  in  the  plead- 
ing. Still  however,  it  is  in  general  necessary,  in 
point  of  form  at  least,  to  lay  a  day  for  every  traver- 
sable  fact,  whether  the  day  is  material  or  not ;  and 
in  the  declaration  especially,  this  is  necessary  for 
the  additional  reason,  that  the  cause  of  action  must 
always  appear,  by  the  plaintiff's  own  showing,  to 
have  accrued  before  the  commencement  of  the 
suit(^). 

§s  64.  The  precise  day  on  which  a  material  fact  Time  when 

11  T     •  IT  11  •      •  immaterial. 

alleged  in  the  pleadings  took  place,  is  in  most  cases 
immaterial,  except  when  the  date  of  a  record,  or 
other  writing,  or  some  other  fact,  the  time  of  which 
must  be  proved  by  a  written  document,  is  alleged(r). 
For  as  the  day  is  not  an  independent  fact,  or  sub- 
stantive matter,  but  a  mere  circumstance  or  accom- 
paniment of  such  matter  ;  it  obviously  cannot  be  in 
its  own  nature  material,  and  must  therefore  be  made 

(p]  2  Stra.  806.     2  Saund.  5.  a.  (n.  3.) 

(</)  Bac.   Abr.   Pleas,   &c.   B.  5.  1.     1  Saund.   24.   a.  (n.  1.) 
291.  c.  (n.  1.)  2  Ib.  171.  n.     1  Stra.  21. 

(r)  10  Mod.  313.     1  Saund.  24.  (n.  1.)  4  T.  R.  590. 


90  GENERAL  RULES  OF  PLEADING. 

CHAP.    so>  if  at  aU>  only  by  tne  nature  of  the  fact  or  matter, 
in.      in  connexion  with  which  it  is  pleaded. 

^  65.  If  then  a  tort  is  stated  to  have  been  com- 
mitted, or  a  parol  contract  to  have  been  made,  on  a 
particular  day  ;  the  plaintiff  is,  in  neither  case,  con- 
fined in  his  proof  to  the  day  laid ;  but  may  sup- 
port the  allegation,  by  proving  that  the  wrong  was 
done (5),  or  the  contract  made(Y),  on  another  day 
— except  that,  in  each  case,  the  day  laid  in  the  dec- 
laration, and  that  proved  in  evidence,  must  both  be 
prior  to  the  commencement  of  the  suit.  And  as  the 
plaintiff  is  not  generally  confined,  in  evidence,  to 
the  time  stated  in  the  declaration ;  so  neither  is  the 
defendant,  when  the  time  on  his  part  is  immaterial, 
confined  to  that  which  is  laid  in  his  plea(u).  And 
the  same  rule  obtains  throughout  the  subsequent 
pleadings. 

^  66.  But  though  a  parol  contract  has,  in  strict- 
ness, no  date,  and  consequently  the  time  of  making 
it  is  not,  as  such,  material ;  yet  if  time  enters  into 
the  terms  of  such  a  contract,  or  is  involved  in  any 
of  its  essential  parts  ;  the  true  time  must  be  stated, 
to  avoid  a  variance.  Hence,  iii  an  action  on  the 
statute  of  usury,  in  which  the  plaintiff  stated  a  cor- 
rupt agreement,  made  on  the  2lst  of  December, 
1774,  for  forbearance  from  that  time  to  the  23 d  of 

(s)  Co.  Litt.  283.  a.  Cro.  Eliz.  32.  1  Chit.  PI.  383.  1 
Saund.  24.  (n.  1.)  2  Ib.  5.  (n.  3.)  295.  (n.  2.) 

(0  Stra.  21.  806.  10  Mod.  313.  348.  1  Chitt.  PI.  258.  1 
Lev.  110.  111. 

(«)  1  Saund.  24.  (n.  1.)     2  Ib.  5.  a.  b.  (n.  3.) 


GENERAL  RULES  OF  PLEADING.  91 

December,    1776,  it  was  resolved,  that  proof  of  an    CHAP. 
agreement  made  on  the  23d  of  December,  1774,  for       in. 
forbearance  for  two  years,  did  not  support  the  de- 
claration^).    It   is  to   be    observed,   however,  that 
this  decision  was  founded,  not   upon  any  supposi- 
tion  that,  in  proving  a  parol  contract,  the  plaintiff  is 
limited  to  the  day  on  which  it  is  alleged  in  the  de- 
claration to  have  been  made ;  but  upon  the  ground 
that  the  agreement  proved,  varied  in  its  terms,  from 
that  stated  in  the  declaration  :     Since  the   time  of 
forbearance,  counted  upon,  was  an  essential  part  of 
the  agreement  itself,  and  entered  necessarily  into  the 
description  of  it. 

§  67.  But  in  pleading  any  written  document — 
such  as  a  record,  specialty,  promissory  note,  bill  of 
exchange,  &c.  the  day,  on  which  it  is  alleged  to  bear 
date,  is  material,  and  must  therefore  be  truly  stat- 
ed(V)  :  As  there  will  otherwise  be  a  variance  be- 
tween the  writing  itself,  and  the  description  of  it  in 
the  pleading.  Thus  in  debt  on  bond,  if  the  plaintiff 
counts  upon  a  writing  obligatory,  as  bearing  date  on 
a  certain  day,  and  the  instrument  is  actually  dated 
on  a  different  day ;  the  variance  will  be  fatal  to  the 
action.  For  though  the  date  is  strictly  no  part  of 
the  contract,  it  nevertheless  enters  into  the  descrip- 
tion of  the  instrument;  and  therefore  a  misstate- 
in  ent  of  the  date  describes  a  different  deed  from  that 
exhibited  in  evidence.  And  the  same  rule  obtains, 

(t))  Cowp.  671.  et  vid.  4  Esp.   Rep.  152. 
(M)  1  Stra.  21.     2  Ib.  806.     10  Mod.  313.     1  T.  R.  656.     3 
Ib.  531.     1  Lev.  110.  111. 


GENERAL  RULES  OF  PLEADING. 


CHAP,    whenever  the  time  stated  in  the  pleading,  on  either 
in.      side,  is  to  be  proved  by  a  record,  or  written  instru- 
ment, referred  to  in  the  pleading. 


Time. 


^  68.  Where  the  date  of  an  instrument  is  alleg- 
ed, it  is  not  indispensable  to  the  sufficiency  of  the 
pleading,  that  the  time  of  its  delivery  be  stated  at 
all(V).  For  the  date  being  stated,  and  the  time  of 
delivery  omitted ;  the  instrument  will  be  intended 
to  have  been  delivered  on  the  day  of  the  date. 

^  69.  But  if  the  plaintiff,  in  an  action  on  a  spe- 
cialty, describes  it  in  the  declaration,  as  bearing 
date  on  a  certain  day,  without  averring  the  time  of 
its  delivery ;  he  cannot,  in  his  replication  allege  that 
it  was  delivered  on  a  day  different  from  that  of  its 
date,  as  stated  in  the  declaration^).  For  the  time 
of  delivery  being  omitted  in  the  declaration,  must  be 
intended  (as  has  been  suggested  already),  to  have 
been  the  same  as  that  of  the  date(z)  :  And  as  the 
day  of  the  date  is  material ;  an  averment,  in  the 
replication,  that  the  delivery  was  on  a  different  day, 
would  be  a  departure. 

^  70.  But  where  time  is  not,  prima  facie,  mate- 
rial, it  may  sometimes  be  made  so  by  the  subse- 
quent pleading  of  the  adverse  party.  Thus,  though 
upon  the  face  of  the  declaration,  the  day,  on  which 
the  cause  of  action  is  laid,  be  immaterial ;  it  may 

(a?)  lid.  1  Saund.  291. (n.  1.)  Cro.  Jac.  420.  2  Ld.  Ray.  1538. 
(y)  3  Lev.  348.     Cro.   Eliz.  773. 
(z)  Cro.  Eliz.  773.  890. 


GENERAL  RULES  OF  PLEADING.  93 

nevertheless  in  many  cases,  be  rendered  material  in    CHAP. 
the  subsequent  pleadings,  by  the   matter  alleged  in      in. 

them(rt).     Yet  whenever  the  day  laid  is  not,  origi-  

nally,  or  prima  facie,  material,  but  is  afterwards 
made  so  by  the  pleading  of  the  adverse  party,  a  de- 
viation from  it,  (if  necessary),  in  any  of  the  subse- 
quent pleadings,  is  no  departure(b)  (18). 

^71.  If  therefore  the  plaintiff  in  assumpsit  lays 
the  promise  on  a  day,  which  is  more  than  six  years 
before  the  commencement  of  the  suit,  and  the  de- 
fendant pleads  the  statute  of  limitations  ;  the  plain- 
tiff may  reply  a  promise  made  within  six  years  be- 
fore the  suit  was  brought(e).  In  this  case,  though 
the  day,  as  it  appears  upon  the  face  of  the  declaration, 
is  not  material ;  the  plea  nevertheless  makes  it  so, 
as  regards  the  subsequent  pleadings,  by  obliging  the 
plaintiff  to  allege,  in  his  replication,  a  promise  with- 
in six  years  before  the  commencement  of  the  suit, 
for  the  purpose  of  taking  the  case  out  of  the  statute. 
But  still  as  the  day  'is  not,  upon  the  face  of  the  dec- 
laration, material ;  the  deviation  from  it,  in  the  re- 
plication, is  no  departure. 

^  72.  Upon  the  same  principles,  if  the  defendant, 
in  an  action  of  trespass,  justifies  the  alleged  wrong, 

(a)  2  Saund.  5.  a.  b.  (n.  3.) 

(6)  1  Lev.  110.     1  Salk.  222-3.     Stra.  21.  806. 

(c)  lid.      16  East,  423. 

(18)  A  departure  is  a  deviation  from  what  is  material,  in  the 
prior  pleadings,  on  the  same  side.  (Vide  Ch.  8,  part  3.) 

13 


C)^  GENERAL  RULES  OF  PLEADING. 

CHAP,  under  the  authority  of  law,  (as  in  the  character  of 
in.  sheriff,  acting  under  legal  process,)  and  lays  his 
justification,  either  on  the  same  day  as  that  men- 
tioned in  the  declaration,  or  on  another  day ;  the 
plaintiff  also,  on  his  part,  may  in  his  replication 
new-assign  the  trespass,  on  a  day  different  from 
that  stated  in  the  plea  or  the  declaration (d).  For 
the  justification  may  be  true  (since  an  act  similar 
to  that  stated  in  the  declaration,  may  have  been  done, 
and  lawfully  done,  on  the  day  mentioned  in  the 
plea)  ;  and  yet  the  particular  wrong,  for  which  the 
plaintiff  actually  seeks  redress,  may  have  been  com- 
mitted on  a  day  different  from  that  mentioned  in  the 
declaration,  or  the  plea  ;  and  at  a  time  when  the 
defendant  had  no  legal  authority  to  do  the  act  in 
question.  And  thus  the  time  of  the  alleged  tres- 
pass, though  notprima  facie  material,  is  made  so 
by  the  plea.  For  if  the  plea  be  true,  it  is  necessary 
for  the  plaintiff — in  order  to  avoid  the  effect  of  it, 
and  entitle  himself  to  a  recovery — to  show,  upon 
the  record,  a  trespass  committed  at  a  time  different 
from  that  covered  by  the  plea.  If  therefore  he  were 
not  allowed  to  vary,  in  his  replication,  from  the 
day  mentioned  in  the  declaration,  he  might,  (as 
in  the  case  last  before  stated,)  be  ousted,  by  an  eva- 
sive plea,  of  the  right  which  the  law  allows  him  of 
laying  the  trespass,  in  his  declaration,  on  whatever 
day  he  pleases. 

§  73.    It  has   long   been  an   established   general 

(d)  1  Salk.  222.     1  Freem.  246.     2  Saund.  5.  a.  b.  (n.  3.) 


GENERAL  RULES  OF  PLEADING.  9 

rule,  however,  that  where  the  time  is  not  material  to    CHAP. 
the  defence,   and  from  the  nature  of  the  case,   the       in. 
matter  of  the  complaint  and  defence  must  have  ac 
crued,  at  one  and  the  same  time,  the  defendant  must,  wheenim- 
in  his  plea,  follow  the  day  laid  in  the  declaration :  mustbe'foi- 
In  other  words,  that  the  plea  must  state  the  matter  JXeqiTent 
of  the  defence,  as  having  accrued  on  the  day  men-  pe' 
tioned  in  the  declaration — (even  though  that  be  not 
the  true  day) — unless  the  nature  or  circumstances  of 
the  defence  render  it  necessary  for  the  defendant  to 
vary  from  the  day  laid   in   the   declaration (e).     The 
object  of  this  rule  appears  to  be,  to  prevent  an  appa- 
rent discrepancy,  in  respect  to  time,  upon   the  face 
of  the  record,  where  the  alleged  cause  of  action,  and 
the  defence  pleaded,  actually  occurred  at  one  and  the 
same  time,  and  where  the  defendant  is  under  no  ne- 
cessity of  laying  his  defence  on  a  different  day  from 
that  mentioned  in  the  declaration. 

^  74.  In  trespass,  therefore,  if  the  defendant 
pleads  a  justification,  he  must  regularly  lay  it  on  the 
same  day,  on  which  the  trespass  is  alleged  to  have 
been  done.  Nor  is  he  allowed  to  vary  from  that 
day  in  his  plea,  unless  the  defence  shows,  upon  the 
face  of  it,  that  it  was  necessary  thus  to  vary(f). 
Thus,  in  trespass  for  an  assault  and  battery,  laid  on 
the  first  of  January,  but  actually  committed  on  a  dif- 
ferent day — as  the  first  of  February — if  the  defend- 
ant pleads  son  assault  demesne,  (i.  e.  necessary  self- 

(c)  1  Salk.  222.     1  Saund.  14.  82.  (n.  3.)     2  Ib.  5.  a.  (n.  3.) 
1  Chitt.  PI.  509.  517.     Com.  Dig.  Pleader,  E.  4. 
(/)  lid- 


Qg  GENERAL  RULES  OF  PLEADING. 

CHAP,  defence,  against  an  assault    by  the  plaintiff)  both 
in.      the  first  assault  and  the  self-defence  must  be  laid  in 

the  plea,  on  the  first  of  January — or  as  the  usual 

form  is,  '  on  the  day  and  year  in  the  declaration  men- 
tioned? (g).  For  if  the  justification  (which  confesses 
the  alleged  battery,)  were  laid  on  the  first  of  Febru- 
ary ;  the  record  would  exhibit  the  apparent  incongru- 
ity of  an  act  done  at  one  time,  and  justified  at  ano- 
ther ;  or,  (which  is  the  same  thing),  of  one  identical 
transaction  taking  place  at  two  different  times. 

§  75.  But  as  the  general  rule,  requiring  a  plea  of 
justification  to  follow  the  day  mentioned  in  the 
declaration,  extends  only  to  cases  in  which  the  time 
is  immaterial;  it  follows  that  a  justification,  unne- 
cessarily varying  from  the  day  laid  in  the  declaration, 
varies  only  in  an  immaterial  point,  and  is  therefore 
faulty  only  inform :  and  is  consequently  good,  except 
on  special  demurrer(A). — (Vide  Demurrer,  ch.  9.) 

Need  not  be       &  76.  When,  on  the  other  hand,  the  justification 

followed,          .  ,          .  .         ,     r 

whenadevi-  is  such  as  to  render  it  necessary  to  the  defence,  that 

ation  from  it  .  1  _     .  .     * 

is  necessary,  the  true  time  be  stated  in  the  plea,  the  law  allows 
the  defendant  to  vary  from  the  time  mentioned  in 
the  declaration  (i).  And  this  is  always  the  case, 
when  it  is  necessary  to  state  the  true  time,  in  order 
to  adapt  the  plea  to  what  is  material  in  the  defend- 
ant's proof.  In  all  such  cases,  the  formal  objection, 

(#)  lid.     2  Chitt.  PI.  524—533. 

(7tj  Stat.  27  Eliz.  c.  5.  1  Saund.  14.  (n.  2.)  2  Stra.  694. 
2  Salk.  642.  1  Lev.  241. 

(i)  2  Saund.  5.  a.  b.  (n.  3.)     1  Chitt.  PI.  617. 


GENERAL  RULES  OF  PLEADING.  97 

arising  out  of  the  apparent  discrepancy  as  to  time,    CHAP. 
between  the  declaration  and   the  plea,  must  yield  to       m. 

the  more  important  principle,  that  each  party  must  

be  permitted  to  frame  his  allegations  according  to 
the  exigency  of  his  case.  If  the  rule  were  other- 
wise, the  plaintiff,  by  stating  in  his  declaration  any 
other  than  the  true  time,  might  entirely  preclude 
the  defendant  from  availing  himself  of  a  just  and 
legal  defence. 

§  77.  In  trespass,  therefore,  if  the  defence  is, 
that  the  act  complained  of  was  done  by  the  defend- 
ant, as  a  sheriff,  or  other  officer,  acting  under  the 
authority  of  legal  process,  which  bears  date  after  the 
day  mentioned  in  the  declaration,  the  defendant 
may — and  to  render  his  plea  available,  must — lay 
his  justification  after  the  date  of  the  process(/c).  For 
if  the  justification  were  laid  on  the  day  mentioned  in 
the  declaration,  (a  day  prior  to  that  of  the  date  of 
the  process,)  the  process  would  not,  in  evidence, 
support  the  plea.  And  thus  the  time  becomes  ma- 
terial in  the  plea,  though  it  was  not  so  in  the  dec- 
laration. 

§  78.  But  in  such  a  case,  the  defendant  must, 
in  some  form,  traverse  the  day  laid  in  the  declara- 
tion^), i.  e.  must  deny  that  he  was  guilty  of  the 
alleged  wrong,  on  that  day,  or  on  any  other  day 
than  that  mentioned  in  his  plea(m).  This  traverse 
is  necessary,  to  make  the  defence  complete,  or  co- 

(k)  2  Saund.  5.  a.  b.  (n.  3.) 

(/)  1  Saund.  82.  (n.  3.)  297.     1  Chitt.  PI.  509. 

(m)  Hob.  104.  1  Chitt.  PI.  534-5.  Com.  Dig.  Pleader,  G.  1.  2. 


gg  GENERAL  RULES  OF  PLEADING. 

CHAP,    extensive  with  the  complaint.     For  as  the  plaintiff 
in.       has    an   unquestionable    right  to    prove    the  alleged 

trespass  to  have  been  committed  on  any  day,  prior 

to  the  date  of  his  writ,  and  of  course,  on  a  day  dif- 
ferent from  that  mentioned  in  the  plea  ;  it  is  mani- 
fest that,  without  such  a  traverse,  the  plea,  which 
applies  the  justification  to  a  single  day  only,  must 
leave  unanswered  any  trespass,  which  may  have  been 
committed  on  any  such  different  day,  and  which 
may  be  the  very  wrong  for  which  the  action  is 
brought :  Upon  which  supposition,  the  justification, 
without  the  traverse,  would  furnish  no  defence  as  to 
the  particular  wrong  for  which  the  plaintiff  claims 
a  recovery. 

§  79.  It  seems  to  be  settled,  however,  (though 
upon  this  point  there  is  some  confusion  in  the  books,) 
that  in  the  cases  contemplated  by  the  last  preceding 
rule,  a  direct  and  formal  traverse  of  the  day  laid  in 
the  declaration  is  not  necessary,  if  the  plea  contains 
the  allegation,  quce  est  eadem  transgressio ;  i.  e.  that 
the  trespass,  justified  in  the  plea,  is  the  same  as  that 
complained  of  in  the  declaration (ri)  :  That  allega- 
tion itself  being  tantamount  to  a  traverse  or  denial, 
that  the  trespass  was  committed  on  any  other  day, 
than  that  stated  in  the  plea.  And  therefore  a  formal 
traverse,  superadded  to  that  allegation,  is  held  to  be 
not  only  unnecessary  but  improper,  and  of  course 
ill,  on  special  demurrer (o). 

(n)  1  Saund.  14.  298.  (n.  2.)  2  Ib.  5.  a.  (n.  3.)  Cro.  Car. 
228.  2  Stra.  694.  1  Lev.  241.  2  Salk.  642.  Cro.  Eliz.  705. 
1  Bulstr.  138.  Yelv.  122-3. 

(o)  lid. 


Time. 


GENERAL  RULES  OF  PLEADING.  99 

§  80.  If,  however,  the  day  stated  in  the  justifica-  CHAP. 
tion  is  the  same  as  that  in  the  declaration,  the  alle-  HI. 
gation,  quee  est  eadem,  &c.  is  unnecessary (p)  :  The 
trespass  complained  of,  and  that  justified,  being  in 
such  a  case  prima  facie  identified,  by  being  laid  on 
the  same  day ;  and  therefore  a  traverse,  in  the  plea, 
of  the  day  laid  in  the  declaration,  is  improper  and 
ill,  in  point  of  form (9).  And  if  the  plaintiff,  in 
this  case,  relies  on  proving  a  trespass  done  on  a 
different  day  he  must  make  a  new  assignment  of  it 
in  his  replication  (qq). 

^  81.  But  though,  where  the  time  in  the  declara- 
tion is  immaterial,  and  the  justification  is,  from  ne- 
cessity, laid  at  a  different  time,  the  plaintiff  is  at 
liberty  to  vary,  in  his  replication,  as  well  from  the 
time  laid  in  his  declaration,  as  from  that  stated  in 
the  plea :  Yet  where  the  day  mentioned  in  the  Ajntc>  § 70- 
declaration  is  itself  material,  the  plaintiff  cannot 
deviate  from  it  in  his  replication,  without  making  a 
departure,  which  would  be  fatal  to  his  action(r), 
Thus,  if  the  plaintiff  declares  upon  a  record,  bond, 
covenant,  bill  of  exchange,  promissory  note,  or  other 
written  instrument,  described  in  the  declaration  as 
bearing  date  on  a  given  day,  he  is  not  allowed  to 
assign  to  the  document,  in  his  replication,  a  different 

(p)   2  Saund.  5.  a.  b.  (n.  3.) 
(9)  Id.     8  Mod.  30.     Fort.  379. 
(99)   Bull.   N.  P.  17.     Bac.  Abr.  Pleas,  &c.  L. 
(r)  2  Saund.   5.  b.  (n.  3.)     1  Salk.  222-3.     1  Ld.  Ray.  121. 
1  Stra.  21.     2  Ib.  806.      1  Lev.  110.  111. 


100  GENERAL  RULES  OF  PLEADING. 

CHAP,    date (5).     For  as  the  date,  mentioned  in  the  declara- 
iii.      tion,  is  part   of   the  description  of   the    instrument 

declared  upon,  the  assignment  of  a  different  date  to 

the  same  instrument,  in  the  replication,  would  be,  in 
effect,  the  pleading  of  a  different  instrument,  and  of 
course,  the  substitution  of  a  different  cause  of  action, 
from  that  stated  in  the  declaration. 

^  82.  But  in  pleading  any  matter  of  discharge, 
as  a  release — accord  and  satisfaction — a  prior  judg- 
ment or  award,  deciding  the  matter  in  controversy 
— payment,  or  tender  of  a  pre-existing  debt,  or  any 
other  defence,  operating  as  a  discharge  or  extinguish- 
ment of  any  prior  liability — the  defendant  is  never 
required  to  follow  the  day  mentioned  in  the  declara- 
tion^). And  the  rule  is  the  same,  whether  the  day 
in  the  declaration  is  material  or  immaterial,  and 
whether  it  is  the  true  day,  or  not.  For  in  pleading 
a  defence  of  this  kind,  a  deviation  from  the  day 
mentioned  in  the  declaration,  introduces  upon  the 
face  of  the  record  no  such  apparent  discrepancy,  in 
regard  to  time,  as  in  certain  cases  before  stated,  a 

O  '  ' 

similar  deviation  would  occasion  :  Since  all  matter 
of  discharge  must,  from  its  nature,  have  accrued 
subsequently  to  the  creation  of  the  duty  or  liability 
upon  which  the  action  is  founded.  It  is  therefore 
manifest,  that  in  pleading  any  matter  of  discharge, 
the  defendant  not  only  may,  but  (to  make  his  plea 

(s)   1  Salk.  222-3.     2  Stra.  806.     2  Saund.  5.  b.  (n.  3.) 
(I)   1  Chitt.  PI.  517.  2  Burr.  944.  2  Wils.  150.  173.     Plowd. 
46.     2  Stra.  994.     Com.  Dig.  Pleader,  E.  6. 


GENERAL  RULES  OF  PLEADING.  ]Q| 

sufficient,)  must,  state  the  defence  as  having  accrued    CHAP. 
after    the  cause  of   action  arose  ;  or,  at  least,  after       m. 

the  wrong  complained  of  was   done,  or  the  contract  

declared  upon,  was  made. 

^  83.  It  may  be  proper  to  add,  in  this  connexion, 
that  when  the  defendant  has  been  discharged  by 
matter  of  record — as  a  prior  judgment — or  by  a 
written  instrument — as  a  deed  of  release  ;  he  cannot 
be  confined,  in  his  plea,  to  the  time  mentioned  in 
the  declaration,  for  an  additional  reason,  viz.  the 
necessity  of  stating  the  time  of  the  discharge,  so  as 
to  conform  to  the  date  of  the  record,  or  instru- 
ment^). For  in  these,  and  similar  cases,  the  date 
is  material,  on  a  principle  heretofore  stated,  viz.  Ante,  §67. 
that  a  deviation  from  it  would  make  a  variance. 

^  84.  In  most  cases,  and  especially  when  the 
declaration  contains  but  one  count,  the  cause  of  ac- 
tion is  laid  on  a  single  day  only  :  In  which  case, 
the  plaintiff  can  recover  only  for  the  wrongs  or  acts 
of  some  one  day(V).  For  the  declaration,  in  the 
case  supposed,  claims  no  recovery,  except  for  what 
has  taken  place  on  one  day.  And  if  there  is  in  fact 
but  one  cause  of  action,  though  differently  stated  in 
different  counts,  the  same  day  is  usually  stated  in  all 
the  counts.  And  when  there  is  only  one  count  in 
the  declaration,  the  plaintiff  cannot  recover  for  acts 

(«)  Vid.  rcference(to),  ante  §  67,  and  the  authorities  there  cited. 
(r)   2  Salk.  639.  1  Ld.  Ray.  240.     2  Ib.  976-7.     2  Chitt.  PI. 
367.  (n.  s.) 

14 


GENERAL  RULES  OF  PLEADING. 


CHAP.   or  injuries  done  on  several  days,  except  in  the  fol- 
iii.     lowing  cases,  and  those  similar  to  them(w)  :  — 


§  85.  1 .  In  an  action  on  the  case  for  a  nuisance 
or  disturbance — in  which  the  damage  complained  of 
is  augmented  by  the  continuance  of  the  wrong,  the 
plaintiff  is,  from  the  nature  of  the  case,  allowed  to 
state  the  period  of  its  continuance,  from  one  given 
day  to  another ;  or,  as  is  the  more  usual  mode,  from 
a  certain  day  named,  to  the  commencement  of  the 
suit(x) :  Since  the  declaration  could  not  otherwise 
show,  nor  the  plaintiff  be  permitted  to  prove,  the 
whole  extent  of  the  injury. 

continuan-  §  86.  2.  In  trespass  also,  when  the  plaintiff  sues 
for  different  wrongs  of  the  same  nature,  committed 
by  continuation  or  repetition,  on  several  different  days, 
he  may  recover  for  all  of  them,  on  one  count,  by  in- 
cluding in  it  as  many  days,  or  as  long  a  period  of 
time,  as  his  case  may  require(?/).  But  in  the  appli- 
cation of  this  rule,  there  is  a  difference  to  be  ob- 
served in  the  mode  of  declaring,  between  the  case 
of  a  trespass  continued  or  renewed  on  several  different 
days,  and  that  of  distinct  trespasses  repeated  on  dif- 
ferent days  ;  or  in  other  words,  between  continued 
trespasses  of  a  permanent  nature,  and  repeated  tres- 
passes which  are  not  permanent. 

(w)  lid. 

(ar)  Vide  precedents  (3  Ld.  Ray.  260.  292.  324.  Plead.  Assist. 
424.  2  Chitt.  PI.  331—342.  354.  429—437.) 

(y)  2  Salk.  638.  3  Black.  Com.  212.     Bac.  Abr.  Tresp.  I.  2- 


GENERAL  RULES  OF  PLEADING. 

^>  87.  When  trespasses  of  one  and  the  same  kind,  CHAP. 
committed  on  several  days,  are  in  their  nature  capa-  in. 
ble  of  renewal  or  continuation,  and  are  renewed  or 
continued  from  day  to  day — so  that  the  particular  in- 
jury, done  on  each  particular  day,  cannot  be  distin- 
guished from  what  was  done  on  another  day — the 
trespasses  are  denominated  permanent.  Of  this  de- 
scription are  trespasses  committed  by  the  cattle,  by 
trampling  down,  consuming  or  destroying,  from  day 
to  day,  the  grass,  crops  or  herbage,  of  any  kind, 
growing  upon  land  (z). 

§  88.  But  when  each  of  several  trespasses,  com- 
mitted on  different  days,  is  distinct  from  the  others, 
and,  terminating  in  itself,  is  incapable  of  continua- 
tion or  renewal,  (in  which  case  the  injury,  commit- 
ted on  any  one  day,  is  supposed  to  be  distinguisha- 
ble from  the  rest),  the  trespasses,  though  all  of  the 
same  nature,  are  deemed  not  permanent.  Thus,  if 
the  defendant  has,  on  each  of  several  different 
days,  felled  one  or  more  of  the  plaintiffs  trees,  or 
killed  several  of  his  beasts,  or  taken  and  carried 
away  different  articles  of  his  personal  chattels  ;  the 
trespasses,  in  either  case,  are  not  of  a  permanent  na- 
ture^). And  from  this  distinction  between  tres- 
passes which  are  permanent,  and  those  which  are 
not  so,  there  results  a  difference  in  the  mode  of  de- 
claring, when  the  action  is  brought  for  more  than 
one  day's  trespass. 

(z)  3  Black.  Com.  212.  Bac.  Abr.  Tresp.  I.  2.  Ld.  Ray. 
240.  976.  2  Salk.  638.  2  Roll.  Ab.  545.  1  Saund.  24.  (n.  1.) 

(a)  1  Ld.  Ray.  239.  2  Id.  975.  2  Salk.  638—9.  Bac. 
Abr.  Tresp.  I.  2.  1  Saund.  24.  (n.  1.)  3  Black.  Com.  212. 


in*  GENERAL  RULES  OF  PLEADING. 

CHAP.         ^  ^9.  When  the  trespasses  complained    of  are  all 
in.      of  a.  permanent  nature,  and  are  continued  on  several 

days,   in  immediate  succession,  they  may  all   be  laid 

in  one  count,  with  a  continuando  for  the  whole 
time — i.  e.  as  having  been  committed  by  continua- 
tion, from  one  particular  day  specifically  named,  to 
another  so  named.  And  if  the  trespasses,  though  of 
a  permanent  nature,  were  committed  on  different 
days,  not  in  immediate  succession,  but  with  intervals 
of  one  or  more  days  ;  they  may  still  be  laid  with  a 
continuando,  though  not  for  the  whole  time ;  but  by 
continuation,  '  on  divers  days  and  times,  between' 
one  given  day  and  another(6). 

^  90.  But  if  .the  trespasses  alleged  are  not  of  a 
permanent  nature  ;  they  cannot  be  laid  with  a  con- 
tinuando from  one  certain  day  to  another ;  but  may 
be  alleged  to  have  been  committed,  diver  sis  diebus 
et  vicibus,  ('  on  divers  days  and  times'),  between  one 
particular  day  and  another,  or  between  one  certain 
day  and  the  commencement  of  the  suit(c).  These 
modes  of  declaring  in  trespass  for  several  days,  in 
one  count,  whether  with  or  without  a  continuando, 
are  allowed,  to  avoid  the  necessity  of  bringing  a 
separate  action,  or  inserting  a  separate  count,  for 
each  day's  trespass  (d). 

(6)  Bac.  Abr.  Tresp.  B.  2.  I.  2.  T.  Ray.  396.  1  Ld.  Ray. 
239—240.  2  Chitt.  PI.  367.  n.  s.  2  Salk.  638—9.  1  Saund. 
23—4.  (n.  1.)  3  Black.  Com.  212.  1  Sid.  319.  Com.  Dig. 
Tresp.  B.  2.  and  vid.  precedents  2  Lill.  Ent.  444.  2  Chitt.  PI.  367. 

(c)  lid. 

(d)  1  Saund.  24.  (n.  1.)      1  Roll.  Ab.  545. 


GENERAL  RULES  OF  PLEADING.  105 

^  91.  But  if  trespasses,  which,  according  to  the  CHAP. 
preceding  distinctions,  do  not  admit  of  continuation,  in. 
are  alleged  with  a  continuando ;  the  declaration  is  ill, 
at  least  in  form(e)  :  Because  it  must  necessarily 
appear,  from  the  nature  of  the  wrongs  alleged,  that 
they  could  not,  in  legal  contemplation,  have  been 
committed  by  continuation,  and  consequently,  that 
they  could  not  have  been  done  in  the  manner  alleg- 
ed. But  the  fault  is  aided  by  verdict(f).  For  the 
continuando  being  void,  only  one  day's  trespass  was 
legally  proveable  under  the  declaration  ;  and  it  must 
therefore  be  intended,  after  verdict,  that  the  damages 
were  assessed  for  no  more  than  one  day's  trespass^). 

§  92.  So  also,  where  the  plaintiff  declared  that 
the  defendants,  on  a  certain  day  named,  '  and  on 
divers  other  days  and  times,  between'  that  day  and 
the  commencement  of  the  suit,  committed  an  assault 
upon  him,  the  declaration — being  specially  demur- 
red to, — was  adjudged  ill(/t)  :  An  assault  being 
one  entire,  indivisible  act,  which  cannot  be  continu- 
ed, or  committed  at  different  times.  But  as  it  is 
now  held,  an  allegation  that  the  defendant  on  a  cer- 
tain day,  '  and  on  divers  other  days  and  times,  be- 
tween that  day  and  the  day  of  suing  forth  the  writ, 
assaulted  the  plaintiff,'  &c.  is  good  :  Since  one  may 
assault  another  at  different  times,  though  an  assault 

(e}  1  Saund.  24.  a.  (n.  1.)  1  Ld.  Ray.  240.  Bac.  Abr.  Tresp. 
I.  2.  1  Lev.  210.  2  Salic.  638—9.  Esp.  Dig.  408. 

(/)  lid.      Vid.  2  Mass.  R.  50. 

(g)  2  Ld.  Ray.  823.  7  Mod.  152.     Comb.  427.     1  Freem.  82. 

(/i)  Cowp.  828.  &  Vide  6  East,  391.  395.  1  Saund.  24.  a. 
(n.  1.)  2  Chitt.  PI.  367.  (n.  s.) 


GENERAL  RULES  OF  PLEADING. 


CHAP,    cannot  be  committed  at  different  times(z)  ;     A  dis- 
iii.       tinction,  which  must  be   acknowledged   to  savor,  in 
some  degree  of  verbal  subtlety. 


Time. 


Ante, §§64.  ^  93.  It  has  been  stated  already,  that  when  a 
trespass  is  laid  on  a  certain  single  day,  the  plaintiff 
is  at  liberty  to  prove  that  it  was  committed  on  any 
one  day,  before  the  commencement  of  the  suit.  But 
when  trespasses  are  laid  with  a  continuando,  he  must 
— if  he  attempts  to  prove  trespassing  acts  on  more 
than  one  day — confine  his  evidence  to  the  period, 
or  some  part  of  the  period,  included  in  the  continuan- 
do(k)  ;  and  is  not  permitted  to  prove  trespasses  on 
two  or  more  days,  which  are  not  comprehended  in 
that  period.  The  reason  of  this  rule  appears  to  be, 
that  although  the  time,  as  such,  is  not  material ;  yet 
the  continuando  is  considered  as  descriptive  of  the 
alleged  trespasses,  or  at  least  of  the  manner  in  which 
they  were  committed.  And  upon  this  supposition, 
a  deviation,  in  evidence,  from  the  time  stated  under 
the  continuando,  is  a  deviation  from  the  plaintiff '  s 
description  of  the  trespasses  complained  of :  Whereas, 
when  only  a  single  day  is  stated  in  the  declaration, 
it  is  not  regarded  as  in  any  sense  descriptive  of  the 
trespasses  alleged  ;  but  simply  as  a  formal  compliance 
with  the  general  rule  of  certainty,  requiring  some 
particular  day  to  be  alleged.  The  same  rule,  which 
limits  the  plaintiff's  proof,  under  a  continuando,  to 

(f)  2  Bos.  &  P.  425-7.  6  East,  395.  1  Phil.  Ev.  (2ded.)  134. 
Bull.  N.  P.  86. 

(k)  2  Salk.  639.  Bull.  N.  P.  86.  1  Saund.  24.  a.  (n.  1.)  Esp. 
Dig.  417-8.  Co.  Litt.  283.  a.  2  Chitt.  PI.  367-8.  (n.  s.)  1  Ib. 
258-9.  16  Mass.  R.  470.  a  Stark.  Ev.  356.  3  Ib.  1441,  note(l). 


GENERAL  RULES  OF  PLEADING. 

the  time  comprehended  within  it,  extends  to  cases  CHAP 
in  which  several  trespasses  are  laid  '  on  different  in. 
days  and  times'  between  two  different  days.  The 
principle  of  the  rule,  however,  as  applied  to  this 
latter  case,  is  not  altogether  so  obvious  as  in  the  for- 
mer. 

§  94.  But  although  the  cause  of  action  be  laid, 
and  properly  laid,  either  with  a  continuando,  or  '  on 
divers  days  and  times,'  between  two  certain  days  ; 
yet  if  the  plaintiff  at  the  trial  will,  as  he  may,  waive 
the  continuando,  in  the  former  case,  or  in  the -latter, 
his  right  of  recovery,  except  for  a  trespass  commit- 
ted on  a  single  day  ;  he  is  at  liberty  to  prove  a  tres- 
pass done  on  any  one  day  before  the  commencement 
of  the  suit.  For  after  such  a  waiver,  the  declaration 
will  stand  as  if  it  had  originally  alleged  but  a  single 
day. 

§  95.  And  where  several  trespasses  are  improp- 
erly laid  by  continuation,  or  '  on  divers  days,'  &c.  and 
the  defendant  instead  of  demurring  specially  for 
that  cause,  pleads  to  the  action  ;  the  plaintiff  may, 
at  the  trial,  without  any  waiver  on  his  part,  be  lim- 
ited, on  the  defendant's  objection,  to  the  proof  of  a 
trespass  committed  on  a  single  day.  In  such  a  case, 
no  waiver  by  the  plaintiff  is  necessary :  For  as  he 
had,  by  the  rules  of  pleading,  no  right,  in  the  case 
supposed,  to  state  more  than  one  day  in  one  count ; 
he  has  of  course  no  right,  on  the  trial,  to  prove  more 
than  one  day's  trespass,  except  by  the  defendant's 
consent  or  acquiescence. 


108 


GENERAL  RULES  OF  PLEADING. 

^  96.  It  seems,  however,  that  declaring  with  a 
continuando  is  not,  at  this  day,  usual  in  England, 
even  when  that  form  of  declaring  is  admissible. 
The  more  customary  mode  of  declaring,  it  is  said,  is 
to  lay  the  trespasses  on  a  given  day,  *  and  on  divers 
other  days  and  times,'  between  that  and  another 
particular  day(/). 

^  97.  When  several  facts  are  stated,  either  in 
several  clauses  of  an  entire  sentence,  or  in  several 
sentences  connected  by  the  conjunction  '  and,'  if  the 
time  be  stated  in  only  one  of  the  different  clauses  or 
sentences,  it  will  be  applied  to  each  of  the  facts  al- 
leged in  the  succeeding  clauses  or  sentences  thus 
connected(m).  Thus  if  the  plaintiff,  in  trespass, 
declares  that  the  defendant,  on  such  a  day,  made  an 
assault  upon  him,  and  took  and  carried  away  such  a 
sum  of  money ;  the  day  stated  will  be  referred,  as 
well  to  the  taking,  &c.  as  to  the  assault :  Such  be- 
ing the  fair  grammatical  construction  of  the  language 
used. 

§98.  In  pleading  any  negative  matter,  no  time 
need  be  alleged(w)  :  As  where  the  plaintiff  avers 
that  the  defendant  has  not  paid  the  debt,  or  perform- 
ed the  duty  in  question  ;  or  the  defendant,  that  he 
has  not  done  what  he  covenanted  not  to  do.  For  no 
particular  day  is  predicable  of  that,  which  has  never 
existed.  And  it  may  be  added,  that  a  negative 

(1}  1  Saund.  24.  (n.  1.) 

(TO)  Cro.  Jac.  443.   Com.  Dig.  Pleader,  C.  19.   1  Ld.  Ray.  576. 

(»)  Com.  Dig.  Pleader,  C.  19.     Plowd.  24.  a.    Lawes'  PI.  58. 


I ;K, \ERAL  RULES  OF  PLEADING.  JQ9 

allegation  requires,  in  general,  no  proof:  The  burden    CHAP. 
of  proof  lying,   regularly,  on  that  party,  who  takes       in. 
the  affirmative  of  the  issue (o).     To  this  last  remark 
there  is  indeed   an  exception,  hvone  or  two  particu- 
lar instances,  not  material  to  the  present  subject(p). 

^  99.  In  real  actions  also,  there  is  no  necessity 
of  alleging  any  particular  day,  in  the  declaration^). 
There  would  indeed  be  no  propriety  or  congruity,  in 
doing  so.  For  in  actions  of  this  class,  the  declara- 
tion does  not,  as  in  personal  actions,  aver  any  spe- 
cific act  or  fact,  (occurring  at  a  particular  time),  as 
the  cause  of  action  ;  but  asserts,  in  substance,  only 
a  subsisting  right  or  title  in  the  plaintiff  or  demandant, 
and  an  adverse  holding  or  denial  of  his  right  by  the 

4/ 

defendant  or  tenant(r). 

^  100.  In  ejectment  also,  it  is  held  unnecessary 
to  lay  the  ouster  on  any  particular  day(s)  :  Because 
— to  adopt  the  reason  usually  assigned — '  so  are  the 
precedents.'  It  is  therefore  held  sufficient,  as  re- 
gards the  time  of  the  ouster,  that  it  be  stated  in  gen- 
eral terms,  as  having  been  committed,  after  the  mak- 
ing of  the  supposed  demise,  and  the  plaintiff's  entry 
under  it.  Perhaps,  however,  the  reason  of  the  rule 

(o)  1  T.  R.  144.  649.  4  Ib.  33.  381.  5  Ib.  616.  Bull.  N. 
P.  297-8. 

( p)  Vid.  2  fil.  Rep.  851.  Gilb.  Ev.  148.  Comb.  57.  3 
East,  192.  10  Ib.  216.  2  Russ.  an  Crimes,  (2d  ed.)  673.  692, 
note(/). 

(q)  2  Sulk.  561.    Com.  Dig.  Pleader,  C.  19.   1  Sauncl.  286-7. 

(r)  Vide.  Precedents,  3  Black.  Com.  App.  No.  1.  §  6.  Lawes' 
PI.  App.  212.  3  Chitt.  PI.  620—635. 

(.9)  Cro.  Jac.  311.  312.  Yelv.  182.  a.  note.  2  Chitt.  PI.  396. 
(n.  r.)  Esp.  Dig.  445-6. 

15 


GENERAL  RULES  OF  PLEADING. 

CHAP.  maj  be,  that  in  the  English  ejectment,  the  supposed 
in.  ouster  is  not  traversable,  and  cannot  in  any  way  be 

put  in  issue :  The  real  defendant  being  obliged, 

under  the  '  common  rule,'  to  confess  the  ouster,  as 
one  of  the  conditions  of  his  being  permitted  to  ap- 
pear and  defend (t).  And  the  general  rule,  requiring 
a  particular  day  to  be  stated  in  pleading,  extends 

Ante,  §62.  only  to  traverstible  facts.  It  is  usual,  however,  in 
the  present  forms  of  declaring  in  this  action,  to  lay 
the  ouster  on  a  particular  day(w). 

§  101.  If,  where  time  is  not  material,  the  pleader 
states  an  impossible  day — as  the  30th  of  February  ; 
or  a  day  future  to  that  of  pleading  ;  or  a  day  incon- 
sistent with  what  he  has  before  stated — -(as  when 
in  trover,  the  declaration  lays  the  loss  of  the  goods 
on  the  second  day  of  a  certain  month,  and  avers  that 
the  defendant  '  afterwards,'  viz.  on  the  jirst  day  of 
the  same  month,  converted  them)  ;  the  effect  of  the 
mistake  is,  in  either  case,  the  same  as  if  no  time 
whatever  had  been  stated(t/) :  For  repugnancy  or 
absurdity,  in  a  point  not  material,  being  but  matter 
of  form,  will  consequently,  except  on  special  demur- 
Post,  §172.  rer'  be  rejected  as  surplusage — according  to  the 
maxim,  utile  per  inutile  non  vitiatur(iv).  And  the 

(0  3  Black.  Corn.  App.  No.  2.  s.  3. 

(M)  3  Black.  Com.  App.   No.  2.  s.  2.     2  Chitt.  PI.  396—400. 

(«)  Carth.  389.  Com.  R.  12.  5  Mod.  286.  Com.  Dig. 
Pleader,  C.  19.  3  M.  5.  Stra.  232.  1095.  Cro.  Jac.  662.  1 
Saund.  116.  286.  1  Lev.  195.  Vide  Yelv.  71.  note  (2).  Clayt. 
102. 

(«>)  Co.  Litt.  303.  a.  Com.  Dig.  Pleader,  Q.  9.  Vid.  Stat. 
27.  Eliz.  c.  5. 


GENERAL  RULES  OF  PLEADING.  j  J  \ 

time,  in  the  cases  now  supposed,  being  immaterial,    CHAP. 
the  mistake  is  aided,  except  on  special  demurrer.  in. 

^  102.  The  third  particular,  in  which  certainty,  Place. 
in  pleading,  is  required,  is  that  of  place ;  the  discus-  (Venue.) 
sion  of  which  involves  the  law  of  venue.  Under 
this  head,  it  is  a  general  rule,  that  the  place  of  every 
traversable  fact,  stated  in  the  pleadings,  must  be  dis- 
tinctly alleged  (a;)  :  Or,  at  least,  (as  the  rule  is  now 
understood  and  applied,)  that  some  certain  place  must 
be  alleged  for  every  such  fact.  This  is  done  by  de- 
signating the  city,  town,  village,  parish,  or  hamlet, 
together  with  the  county,  in  which  the  fact  is  alleged 
to  have  occurred  ;  and  the  place,  thus  designated,  is 
called  the  venue(y)  :  The  term,  '  venue?  (vicinage,} 
signifying,  in  strictness,  not  the  county  in  which  the 
action  is  brought ;  but  the  particular  city,  town, 
parish,  hamlet,  &c.  in  which  the  fact  alleged  occurred 
or  is  supposed  to  have  occurred,  and  which  is  stated 
as  situate  in  the  county  named  in  connexion  writh 
it(z).  In  its  present  acceptation,  however,  the 
word  venue  is  most  frequently  used  to  comprehend, 
as  well  the  county,  as  the  town,  parish  or  other 
vicinage,  in  which  the  fact  alleged  arose,  or  is  stated 
to  have  arisen, 

(x)  Com.  Dig.  Pleader,  C.  20.  Cro.  Eliz.  78.  98.  5  T.  R. 
620.  1  Stra.  595.  Lawes'  PI.  57-8.  Bac.  Abr.  Venue,  B. 
Co.  Litt.  303.  a. 

(y)  3  Black.  Com.  294.  384.  Com.  Dig.  Pleader,  C.  20. 
Bac.  Abr.  Venue,  A. 

(*)  lid. 


112 

CHAP. 
III. 

Place. 
(Venue.) 


GENERAL  RULES  OF  PLEADING. 

§  103.  But    the   rule,   requiring   the    laying  of  a 
venue  for  traversable  facts,  though  doubtless  neces- 
sary for  the  sake  of  certainty  in  pleading,  was,  by  an 
ancient  principle  of  the  common    law,  more   espe- 
cially so,  for  an  entirely  different  reason.     For  by  a 
general  rule  of  the  common  law,  strictly  observed  in 
the  ancient  practice,  and  still  recognised  in  theory, 
by  legal  fiction,  every  issue  in  fact,  triable  by  jury, 
was  required  to  be   tried  by  jurors,  not  only  of  the 
same  county,  but  also  of  the  same  venue,  vicinage,  or 
immediate  neighborhood,  in  which  the  fact  to  IDC  tried 
actually   took   place(«)  :      A   rule,  founded    on   the 
inaxim  of  the  common  law,  Maxmimt  Vicini  Vicino- 
rum  facta  presumuntur  scire,  the  transactions  of  men 
are   presumed   to  be   best  known  to   those  of  their 
immediate  neighborhood).     And  this  regulation  made 
it  necessary,  that  the  true  place  or  venue  should   be 
alleged ;    because    it    could    not    otherwise    appear 
from  the   pleading,  to  what  particular  vicinage   the 
jury-process    should    go — or    in    other   words — from 
what  vicinage  the  jury  should   come.     And  upon  the 
establishment  of  nisi  prius  trials,  (which  were  held 
in  each  county  of  the  kingdom),  it  was  also  required 
that  every  matter  of  fact,  put  in  issue  and  triable  by 
jury,  should  be  tried,  as  well  in  the  county  (19),  as 

(a)  Co.  Litt.  125.  a.  b.  innotis.  Yelv.  12.  M.  2.  Gilb.  H.  C.  P. 
70.  83-4.     5   T.  R.   620.   3   Black.   Com.   359.  384-5.     Com. 
-Dig.  Amendment,  H.I.     Lawes' PI.   27-8.     2   H.    Black.  161. 
Bac.  Abr.  Venue,  E.     5  Mass.  R.  96. 


(19)  To  the  ancient  common  law  rule,  that  every  action  must 
be  laid  in  the  county,  in  which  the  cause  of  action  arose,  there 


GENERAL  RULES  OF  PLEADING.  JJ 

by  a  jury  of  the   county  and  vicinage,  in  which  the    CHAP. 
fact  actually  arosc(6).     Hence  it  became  necessary,      in. 
for  the  purpose  of  trial,  that  the  true  place  of  every 
traversable  fact  should  be    stated  in  the   pleadings : 
Since  it  could  not  otherwise    be  known  from   the 

(b)  2  H.  Black.  161.  Co.  Litt.  125.  a.  b.  Bac.  Abr.  Venue, 
E.  Gilb.  H.  C.  P.  70.  83-4.  3  Black.  Com.  359.  384-5.  Bac. 
Abr.  Actions  Local,  &c. 

appears  to  have  been  originally,  or  at  a  very  early  period,  an  ex- 
ception in  the  case  of  actions  founded  on  Personal  contracts;  as 
in  account,  debt,  and  covenant  broken.  Actions  of  this  kind 
were  allowed  to  be  brought  in  any  county,  in  accordance  with  the 
maxim,  debitum  et  contractus  suntnullius  loci  :  He  who  is  indebt- 
ed, being  a  debtor  in  all  places,  or  wherever  he  is.  (7  Co.  3.  a. 
Com.  Dig.  Action,  N.  12.  6.  1  Stra.  612.  Cowp.  180.  3 
Black.  Com.  384.  1  Saund.  74.  (n.  2.)  But  by  the  stat.  6  Rich. 
2.  c.  2.  it  is  enacted,  that  in  '  writs  of  debt  and  account,  and  all 
other  such  actions, — if  in  pleas  upon  the  same  writ,  it  shall  be 
declared  that  the  contract  thereof  was  made  in  another  county'  than 
that  in  which  the  w»t  is  brought ;  the  writ  shall  abate.  Under 
this  statute,  if  it  appeared  from  the  record,  that  the  contract  was 
made  in  a  county,  other  than  that  in  which  the  action  was  laid  ; 
the  judgment  was  erroneous.  1  Saund.  74.  (n.  2.)  But  to 
prevent  error,  and  to  avoid  the  inconvenience  of  rigidly  abating  - 
the  writ,  the  judges,  at  a  subsequent  period,  construed  the  statute 
as  authorizing  them,  in  their  discretion,  to  change  the  venue,  under 
a  rule  of  practice,  by  ordering  the  declaration  to  be  altered,  and 
the  action  laid,  and  trial  had,  in  the  county  in  which  the  cause 
of  action  arose.  (Bac.  Abr.  Actions  Local,  &c.  2  Salk.  670. 
3  Black.  Com.  294.)  This  statute,  and  that  of  4  Hen.  4.  c.  18, 
requiring  that  attornies  '  make  no  suit  in  a  foreign  county,'  are  con- 
sidered as  the  source  of  the  authority,  which  judges  now  exercise, 
of  changing  venues  in  transitory  actions. 


l]^  GENERAL  RULES  OF  PLEADING. 

CHAP.    record>     ill    what   county    the    issue    ought    to    be 
in.      tried (c). 

§  104.  In  the  application  of  this  ancient  rule, 
however,  a  distinction,  suggested  by  general  conve- 
nience, was  soon  established  between  things  local 
and  transitory ;  and  consequently  between  local  and 
transitory  actions.  In  local  actions,  the  preceding 
rules  regarding  locality  of  trial  were  still  adhered  to  ; 
while  those  of  a  transitory  nature  became,  by  an  ar- 
bitrary laying  of  the  venue,  triable  in  any  county, 
in  which  the  venue  was  laid  in  the  pleadings(d). 
Hence  in  local  actions,  the  place  has  ever  been,  and 
still  is,  material ;  and  must  therefore  be  laid  accord- 
ing to  the  truth  (e).  But  in  actions  transitory,  the 
ancient  rule  as  to  the  locality  of  actions  and  trials, 
is  now,  and  has  long  been,  entirely  disregarded,  or 
rather  evaded,  to  every  purpose  except  the  mere 
form  of  laying  some  venue,  and  the  power  of  the 
i9dantneote  court>  under  special  circumstances,  to  change  it,  i.  e. 
to  change  the  county,  on  motion.  In  transitory  ac- 
tions, therefore,  the  plaintiff  is  at  liberty  to  lay  the 
venue  in  what  county  hepleases(/). 

Local  and        §  105.     It  becomes  necessary,  therefore,  to  a  cor- 
rect  understanding  of  the  modem  law  of  venues,  to 

(c)  lid.  Cowp.  176.     2  H.  Black.  160-1. 

(d)  7  Co.  3.     Gilb.  H.  C.  P.  84-5.     Cowp.  176—7.  3  Black. 
Com.  294. 

(e)  Com.   Dig.  Action,  N.    1.2.3.     Id.  Pleader,    S.    15.     3 
Black.  Com.  294. 

(/)  3  Black.  Com.  294.  Bac.  Abr.  Actions  Local,  &c.  B. 
Com.  Dig.  Pleader.  S.  9.  Cowp.  177.  1  Saund.  74.  (n.  2.) 
Gilb.  H.  C.  P.  89-90. 


GENERAL  RULES  OF  PLEADING.  J  J 

ascertain  in  the  first  place  what  actions  are  local,    CHAP. 
and  what  transitory.     A  local  action  is  one,  which      in. 
must  still  be  laid  in  the  county,  in  which  the  cause 

,         Venue. 

of  action  actually  arose.  A  transitory  action  may  be 
laid  in  any  county,  which  the  plaintiff  may  pre- 
fer^). The  present  locality  of  actions  is  founded, 
in  some  cases,  on  common-law  principles,  and  in 
others,  on  positive  enactments  of  statute-law. 

^  106.    Of   those  which   continue    local,  by  the 
common  law,  are 

1.  All  actions  in  which  the  subject  or  thing  to  be  Local  ac- 

»  tions. 

recovered,  is  in  its  nature  local.  Of  this  class  are  all 
real  actions — actions  of  waste,  when  brought  on  the 
statute  of  Glocester,  (6  Edw.  1.),  to  recover,  to- 
gether with  damages,  the  locus  in  quo,  or  place 
wasted — and  actions  of  ejectment (h).  All  these 
are  local,  because  they  are  brought  to  recover  the 
seisin  or  possession  of  lands  or  tenements,  which 
are  local  subjects.  And  if  the  place — as  the  par- 
ish, &c.  where  the  land,  or  subject  in  demand,  is 
situated — be  misstated,  the  plaintiff  will  be  liable  to 
a  nonsuit(*),  by  reason  of  the  mis-description  of  the 
subject-matter  of  the  suit ;  because  the  place  enters 
into  the  description  of  it. 

^   107.  2.   Various  actions,  which  do  not  seek  the 
direct  recovery  of  lands  or  tenements,  are  also  local, 

(g]  Bac.  Abr.  Actions  Local,  &c.  A.   (a), 
(/t)  lid.  Com.    Dig.    Action,  N.    1.     7  Co.  2.  b.     2  Black. 
Rep.  1070.     Covvp.  176.     7  T.  R.  583.    4   Ib.  504. 
(»)    1  Stra.  595.     3  Lev.  334. 


tions. 


iig  GENERAL  RULES  OF  PLEADING. 

CHAP,  ky  the  common  law  ;  because  they  arise  out  of  some 
in.  local  subject,  or  the  violation  of  some  local  right  or 
interest.  Thus  the  action  of  quare  impedit  is  lo- 
cal^) ;  inasmuch  as  the  benefice,  in  the  right  of  pre- 
sentation to  which  the  plaintiff  complains  of  being 
obstructed,  is  so.  Within  this  class  of  cases  are 
also  many  actions,  in  which  only  pecuniary  damages 
are  recoverable.  Such  are  the  common-law  action 
of  waste,  and  trespass  quare  clausum  fregit(l)  ;  as 
likewise  trespass  on  the  case  for  injuries  affecting 
things  real — as  for  nuisances  to  houses  or  lands — 
disturbance  of  rights  of  way,  or  of  common — obstruc- 
tion or  diversion  of  ancient  water-courses,  &c.(w). 

^  108.  If  however  a  tortious  act,  committed  in 
one  county,  occasions  damage  to  land  or  any  other 
\:  local  subject,  situate  in  another ;  an  action  for  the 
injury  thus  occasioned,  may  be  laid  in  either  of  the 
two  counties,  at  the  choice  of  the  party  injured(w). 
Thus,  if  by  the  diversion  or  obstruction  of  a  water- 
course, in  the  county  of  A.,  damage  is  done  to  lands, 
mills  or  other  real  property  in  the  county  of  B.,  the 
party  injured  may  lay  his  action  in  either  of  those 
two  counties. 


beci         ^  109.    No  action  will  lie,  in  any  one  sovereign 
ing  in  a  Vor-  state,  for  the  recovery  of  lands  or  tenements   lying 

cign  coun-  J  J 

try. 

(fc)  7  Co,  3.  a.  Com.  Dig.  Action,  N.  4.     1  Chitt.  PI.  271. 

(/)  Bac.  Abr.  Actions  Local,  &c.  A.  (a).  Cowp.  180.  4  T. 
R.  503.  6  East,  598-9. 

(w»)  Com.  Dig.  Action,  n.  4.  7  Co.  2.  b.  2  East,  498-9.  1 
Chitt.  PI.  271. 

(n)  7  Co.  2  B.  Co.  Litt.  54.  a.  Com.  Dig.  Action,  N.  3.  11. 
2  T.  R.  241.  7  Ib.  583.  3  Stark.  Ev.  1650. 


CKVER.VL  RULES  OF  PLEADING.  11- 

in    another(o) :  Since    no    common-law   court    has    CHAP. 
jurisdiction  of  local   causes,  arising  within  a  foreign      m. 
sovereignty.      Indeed  a  judgment,  if  given  in  such  a 
case,  would  be  utterly  nugatory.     For  as  legal   pro-  Venue' 
cess,  issuing  from  a  court  of  even  the   highest  juris- 
diction,  is   of  no  authority  in   any  other  country  or 
state,    than    that    in    which    it  was  issued  ;  a  judg- 
ment, in  the  case  supposed,  could  by   no  possibility 
be  enforced(20).     Nor  in  general  can  any  personal 
action  be  maintained,  in   one  sovereign  state,  for   a 
trespass,  nuisance,  or   other  injury  to  real  property, 
lying  in  another(p)  :    Such   actions   being   local,  (as 
already  stated),  because  they  arise  out  of  local  sub- 
jects. 

§  110.  But  it  has  been  held  that  this  last  rule 
admits  of  an  exception,  wThere  a  local  cause  of  ac- 
tion, requiring  a  reparation  in  damages  only,  arises 
in  a  foreign  country,  in  which  there  are  no  regular 
courts  of  judicature,  and  in  which,  of  course,  no  le- 
gal remedy  can  be  obtained^).  In  such  cases,  this 

(o)  Bac.  Abr.  Jettons  Local,  &c.  A.  (a).  G'owp.  176.  1  Chit. 
PI.  269. 

(p)  1  Stra.  646.  2  Black.  Rep.  1070.  Cowp.  176.  4  T.  R. 
503.  7  Ib.  587.  6  East,  598—9. 

(q)  Cowp.  180 — 1. 

(20)  These  remarks,  however,  are  not  practically  applicable,  in 
their  full  extent,  to  the  jurisdiction  and  decrees  of  courts  of  equity. 
For  these  courts,  by  their  power  of  acting  in  personam,  when  the 
parties  are  within  the  reach  of  their  process,  can  in  many  cases  in- 
directly enforce  rights  to  real  property,  situated  in  foreign  coun- 
tries. 1  Atk.  19.  2  Yes.  204.  447.  454.  Mitf.  PI.  184.  1 
Fonbl.  Eq.  31.  6  C ranch,  157. 

16 


1 1  g  GENERAL  RULES  OF  PLEADING. 

exception  has  been  allowed  in  some  instances,  from 
necessity,  to  prevent  a  failure  of  justice.  And  as  the 
judgment,  in  this  class  of  cases,  is  for  damages  only  ; 
there  is  indeed  no  practical  difficulty  in  enforcing 
it — as  there  would  be,  if  the  action  were  brought 
for  the  recovery  of  a  specific  local  subject,  situated  in 
a  foreign  county.  Thus  where  certain  houses, 
erected  by  the  plaintiff  on  the  coast  of  Nova  Scotia, 
had  been  illegally  demolished  by  the  defendant,  at 
a  time  when  no  regular  administration  of  justice  had 
been  established  in  that  province,  and  an  action  of 
trespass  for  that  injury  was  brought  in  the  English 
court  of  B.  R.,  Lord  Mansfield  held  the  action  to 
be  maintainable (r).  But  this  doctrine  appears  to  be 
now  overruled (5). 

§  111.  The  action  of  replevin  also,  though  it  lies 
for  damages  only,  and  does  not  arise  directly  out  of 
the  violation  of  any  local  right,  is  nevertheless  lo- 
cal(t).  The  reason  of  its  locality — (a  reason  which 
applies  to  no  other  action  for  injuries  to  personal 
chattels) — appears  to  be  the  necessity  of  giving  a 
local  description  of  the  taking  complained  of.  For,  in 
declaring  in  replevin,  it  is  necessary  to  describe,  and 
to  describe  truly,  the  locus  in  quo — i.  e.  the  close, 
house,  or  common,  in  which  the  cattle  or  goods  in 
question  wrere  taken  by  the  defendant^)  :  And  as 

(r}  Cowp.  180—1.     4  T.  R.  503—4. 
(a)  4  T.  R.  503—4. 

(0   1  Saund.  347.  (n.  1.)     Hob.    16.     Willes,   478.     1    Stra. 
507-8.     2  Wils.  354.      1  Chit.  PI.  161.     2  Ib.  364.  (n.  c.  &  e.) 
(tt)  lid.     Yelv.  185.  n.  (1).     10  Johns.  R.  53. 


GENERAL  RULES  OF  PLEADING. 

the  necessity  of  alleging  the  true  place  of  caption   CHAP. 
involves  the  necessity  of  laying  the  true  town,  parish      in. 
or   vill,    and   of    course    the    true   county ;    the  ve 
nue  and  county  as  well  as  the  close,  &c.  are  con- 
sequently material (v),  and  the  actions  of  necessity,  tions.  ac 
local.     If  however  replevin  lies,  by  the  common  law, 
only  for  goods  distrained ;   there  would  seem  to  be 
another  and  more  fundamental  reason  for  its  locality, 
viz.   that  the  right  of  distress,  which  the  action  is 
intended  to  contest,  is  at  common  law  always  local. 

§  112.  But  personal  actions,  that  is  to  say,  actions  SoS.017 
which  seek  nothing  more  than  the  recovery  of  money, 
or  personal  chattels  of  any  kind,  are  in  most  cases 
transitory,  whether  they  sound  in  tort  or  in  con- 
tract^) :  Because  actions  of  this  class  are,  in 
most  instances,  founded  on  the  violation  of  rights 
which,  in  contemplation  of  law,  have  no  locality*- 
And  it  will  be  found  true,  as  a  general  position,  that 
actions  ex  delicto,  in  which  mere  personalty  is  alone 
recoverable,  are,  by  the  common  law,  transitory — 
except  when  they  are  founded  upon,  or  arise  out  of, 
some  local  subject(.r).  Thus  actions  for  injuries  to 
the  person,  or  to  personal  chattels — as  for  assault  and 
battery,  false  imprisonment,  slanderous  words,  libel,  and 
malicious  prosecution(y) — trespass  for  taking  away 

(»)  1  Saund.  347.  (n.  1.)  Cro.  Eliz.  896.  Carth.  186.  Wil- 
les,  478.  1  Stra.  507-8.  2  Mod.  199. 

(ic)  Com.  Dig.  Action,  N.  12.     1  Chitt.  PI.  273. 

(x)  Com.  Dig.  Action,  N.  12.  Co.  Litt.  282.  Cowp.  161. 
1  T.  R  571.  2  Black.  Rep.  1058.  2  Chitt.  Pi".  242.  (n.  p.) 

(</)  I'd- 


GENERAL  RULES  OF  PLEADING. 

CHAP.    or  injuring  personal  chattels*  trover,  trespass  on  the 
in.       case  for  escapes,  false  returns,  deceit  in  the  sale  of 

goods,  &c.    are   in  general  tmnsitory(z)  ;   and   may 

consequently  be  laid  in  any  county,  even  though   the 

Transitory  r  •  •   i  •  /••          >       •     -i  • 

actions.       cause  01  action  arose  within  a joreign  jurisdiction  (a). 

§  113.  In  the  case  of  Mostyn  v.  Fabrigas(b), 
Lord  Mansfield  indeed  suggested  a  doubt,  whether 
trespass  for  an  assault  and  battery,  committed  out  of 
»  the  realm  of  England,  would  lie  in  the  courts  of 
Westminster;  because  as  every  such  injury  involves 
a  breach  of  the  peace,  it  must  be  alleged  to  have 
been  committed  against  the  peace  of  the  king ;  and 
a  breach  of  the  peace,  considered  as  a  public  wrong, 
is  confessedly,  local.  There  appears,  however,  no 
sufficient  reason  for  the  doubt  here  suggested.  For 
the  wrong,  considered  as  a  civil  injury,  is  clearly 
transitory  ;  and  in  the  subsequent  case  of  Rafael  v. 
Verelst(c),  in  which  the  point  in  question  directly 

(z)  2  Salk.  670.  12  Mod.  408.  Com.  Dig.  Action,  N.  12. 
Sayer,  54.  1  Wils.  336.  1  East,  114.  Cro.  Car.  444.  9 
Johns.  R.  67. 

{a)  Com.  Dig.  Action,  N.  12.  Cowp.  161.  2  Black.  Rep. 
1058.  4  East,  162-3. 

•<&)  Cowp.  176. 

<c)  2  Bfack.  Rep.  1058. 

*  The  action  for  a  false  return  is  here  called  transitory,  in  pur- 
suance of  reputable  authority,  Com.  D.  Action,  N.  12.  Bac.  Abr. 
Actions  Local,  &c.  A.  1  Selw.  Pract.  244.  2  Chitt.  PI.  303. 
(n.)  ;  but  from  a  collation  of  the  different  opinions  in  the  books, 
it  appears  to  be,  in  strictness,  neither  transitory,  nor  local  :  For  it 
may  be  laid,  either  in  the  county,  in  which  the  return  was  made,  or 
in  that,  in  which  the  record  remains;  but  in  no  other.  12  Mod. 
408.  515.  Hob.  209.  1  Brownl.  12.  1  Sid.  218-9.  Bull.  N. 
P.  46.  (or  64).  Holt.  170.  1  East,  115.  (n.) 


GENERAL  RULES  OF  PLEADING. 


arose,   it  was  held  by  the  court  of  Common  Pleas,    CHAP. 
that  the  allegation,  '  contra  pacem  Domini  Regis?  was       m. 
not    traversable   in.  such   an   action       and    that   the 


action,  then  before  the  court,  which  was  brought  for 
an  assault,  battery  and  false  imprisonment,  com- 
mitted in  the  dominions  of  a  foreign  sovereign  prince, 
was  well  laid  in  an  English  county. 

^  114.  Actions  ex  contractu  also,  as  has  been  Vi(K0 
suggested  already,  are  in  general  transitory,  by  the 
commt)ii  law  :  For  '  debitiim  et  contractus  sunt  nullius 
loci'(d) — the  foundation  of  which  maxim  doubtless 
is,  that  the  causes  of  this  class  of  actions  have,  in 
most  cases,  no  natural  locality,  and  therefore  follow 
the  person  of  the  defendant.  Hence  the  actions  of 
debt,  covenant  broken,  account,  and  assumpsit,  may  in 
general  be  laid  in  any  county(e).  And  the  rule  is 
the  same,  even  though  the  contract  were  made,  and 
by  its  terms  to  be  performed,  in  a  foreign  country^/}. 

§  115.  But  debt  on  judgment  is  local,  by  the 
common  law,  and  must  be  laid  in  the  county  in 
which  the  record  of  the  judgment  remains^'). 
This  rule  however  is  founded,  not  upon  the  nature 
of  the  thing  in  demand,  which  is  money  ;  but  appa- 

(d)  7  Co.  3.  a.     Com.  Dig.  Action,  N.  12.     Tidd,  543-6.     3 
Black.  Com.  384.     1  Stra.  612.     Cowp.  180.      1  Saund.  74.  (n. 
2.)  vide  ante,  Note  19. 

(e)  lid. 

(/)  Com.  Dig.  Action,  N.  12.  2  Salk.  660.  Latch,  4.  1 
Saund.  74.241.  b.  Cowp.  180.  1  Stra.  612.  2  Ld.  Ray.  1532. 
1  Chitt.  PI.  273. 

(g)  Com.  Dig.  Action,  N.  6.  Hob.  196.  2  Tidd,  1035.  2 
Johns.  Cas.  381. 


GENERAL  RULES  OF  PLEADING. 

CHAP,    rently  upon  the  locality  of  the  record,  upon  which 
in.      the  action  is  founded :     Records  being  required  to 

remain  at   a  fixed  place,  appointed   by  law.     And 

Locaf  and    hence    an  action,  founded    on  a  judgment,  may  be 
S>ns?ry    considered   as  arising  out   of   a    local  subject — the 
record  being  made  local  by  the  law. 

On  Leases.  ^116.  As  to  actions  arising  upon  leases,  and 
which  appear  to  require  a  distinct  consideration,  the 
common  law  has  established  the  following  general 
distinction  :  If  the  action  is  founded  directly  on 
privity  of  contract  between  the  parties ;  it  is  transi- 
tory, and  may  be  laid  in  any  county  ;  even  though 
the  land,  or  subject  demised,  be  situated  in  a  foreign 
county(A-)  :  But  if  the  action  is  founded  on  privity 
of  estate,  it  is  local,  and  must  consequently  be  laid 
in  the  county  in  which  the  estate  lies(«).  For 
though  money  only  is  recoverable,  in  either  case, 
yet  in  the  former,  the  right  of  action  arises  exclusive- 
ly out  of  the  personal  contract,  which  is  in  its  nature 
transitory.  Whereas  in  the  latter,  the  action  is  found- 
ed on  the  interest  of  the  parties  in  the  land  or  property 
demised,  which  is  a  local  subject ;  and  for  this  reason 
the  action  is  local.  This  general  distinction  may  be 
illustrated,  by  the  seven  following  particulars  : — 

§  117.  1.  The  action  of  debt,  or  covenant  brok- 
en, brought  by  the  lessor  against  the  lessee,  or  vice 

(h)  7  Co.  2.  a.  2  Salk.  651.  1  Saund.  241.  b.  (n.  6.)  G 
Mod.  194.  2  East,  579. 

(»)  7  Co.  2.  a.  3.  a.  6  Mass.  R.  331.  1  Saund.  241.  b.  (n. 
6.)  Carth.  182-3.  6  Mod.  194. 


GENERAL  RULES  OF  PLEADING. 


versa,  is  transitory  (k).     For  these  being  immediate   CHAP. 
parties  to  the  lease  ;   there  exists  between  them  a      in. 
privity  of  contract,  which  is  the  foundation  of   the 
action. 


2.  But  debt,  or  covenant  broken,  when 
brought  by  the  lessor  against  the  assignee  of  the  les- 
see, or  vice  versa,  is  by  the  common  law  local(l). 
For  the  assignee  of  the  lease,  though  privy  in  in- 
terest or  estate  to  the  lessor,  is  a  stranger  to  the  per- 
sonal contract,  between  lessor  and  lessee  ;  and  can- 
not therefore  be  charged  in  favor  of  the  lessor,  on 
privity  of  contract  ;  but  is  liable,  (when  liable  at 
all),  on  privity  of  estate,  which  is  in  its  nature  local. 
In  these  latter  cases,  the  assignee  of  the  lease,  when 
liable  to  the  lessor,  on  any  of  the  lessee's  covenants, 
is  so  liable,  because  he  holds  the  interest  or  estate, 
which  the  lessee  had  before  the  assignment  ;  and  is 
consequently  liable  only  on  those  covenants  of  the 
lessee,  which  '  run  with  the  land7  —  or  in  other 
words,  those  which  follow  the  interest  demised(21). 
And  hence  the  action  is  said  to  be  founded  on  privi- 
ty of  estate. 

(k)  7  Co.  a.  2.  Bac.  Abr.  Actions  Local,  &c.  A.  (a.)  6  Mod. 
194.  2  Stra.  776.  2  East,  579.  1  Saund.  241.  b.  (n.  6.)  2  Salk. 
651. 

(/)  Bac.  Abr.  Actions  Local,  &c.  A.  (a).  5  Co.  17.  1  Saund. 
241.  b.  (n.  6.)  Carth.  183.  2  Eas*,  580. 


(21)  A  covenant  '  runs  with  the  land',  only  when  the  right  or 
obligation,  created  by  it,  is  attached  to  the  interest  demised,  or  to 
the  estate,  out  of  ichich  that  interest  was  created  ;  so  that  the  right 
or  obligation  devolves,  (on  an  assignment  of  the  estate  or  interest), 
upon  the  assignee  of  the  party  assigning. 


actions. 


124  GENERAL  RULES  OF  PLEADING. 

CHAP.         §  119.    3.  Upon  the  same  principles,  the  action 
in.      of  covenant  broken,  brought  by  the  assignee  of  the 

lessee,  against  the  assignee  of  the  lessor,  is  by  the 

common  law,  local(m)  :     For  the  action,  which  is 

Local  and  -11  "     i  .  . 

transitory     given  by  the  common  law,   between  these   parties,  is 

smtirmc 

founded  on  privity  of  estate.  So  also  on  the  other 
hand,  debt  or  covenant  broken,  brought  by  the  as- 
signee of  the  lessor,  against  the  assignee  of  the  les- 
see, is  local(w)  :  For  the  statute  32  Hen.  8,  c.  34, 
which  in  this  latter  instance  gives  the  action,  makes 
it  local,  by  giving  to  the  assignee  of  the  lessor,  *  the 
same  remedy,  by  action,'  as  the  lessor  himself  has, 
by  the  common  law.  And  the  lessor's  remedy,  by 
the  common  law,  against  the  assignee  of  the  lease, 
being  local,  (as  stated  in  the  last  section)  ;  that  of 
the  lessor's  assignee  is,  in  the  construction  of  this 
act,  held  to  be  of  course  local. 

§  120.  4.  The  action  of  debt,  (as  for  rent  ar- 
rear),  by  the  assignee  of  the  lessor,  against  the  lessee, 
is  also  local  by  the  common  law(o).  For  rent  being 
incident  to  the  reversion,  and  the  lessee  being  in  the 
receipt  of  the  issues  and  profits  of  the  land,  out  of 
which  it  arises ;  there  consequently  exists,  between 
these  parties,  a  privity  of  estate  :  And  the  action 
being  founded  upon  that  privity — (for  the  privity 
of  contract,  between  the  original  parties  to  the 

(TO)  5  Co.  17.  a.      1  Saund.  241.  c.  (n.  6.)      1  Chitt.  PI.  276. 

(n)  1  Saund.  241.  c.  (n.  6.)  1  Salk.  80.  7  T.  R.  583.  Garth. 
182.  2  East,  580.  1  Wils.  165.  3  Mod.  338.  4  Ib.  81. 
Bac.  Abr.  Covenant,  E.  6.  Ib.  Actions  Local,  &c.  A.  (a.) 

(o)  3  Co.  22.  b.  1  Saund.  241.  c.  (n.  6.)  1  Wils.  165.  3 
Mod.  338.  4  Ib.  81. 


GENERAL  RULES  OF  PLEADING. 


lease,  is  destroyed  by  the  assignment  of  the  rever-    CHAP. 
sion)  —  is  consequently  local.     And  it  is  here  obser-      in. 
vable,  that   the  dccisee  of  the  reversion  is  consider- 


ed  and  treated  as  the  assignee  of  the  lessor,  within  ^^1°  and 
the  three   last  rules :  The   devise  being,  in  legal  ef-  a?t"ons°.ry 
feet,  a   testamentary  assignment    of    the    reversion. 
And  by  parity  of  reason,  the  devisee  of  the  term  is 
in  law  the  assignee  of  the  lessee. 


•&' 


^  121.  5.  But  the  action  of  covenant  broken, 
brought  by  the  assignee  of  the  lessor,  against  the 
lessee,  or  nice  versa,  upon  an  express  covenant  con- 
tained in  the  lease,  and  running  with  the  land,  is 
made  transitory,  by  the  operation  of  the  statute  32 
Hen.  8.  c.  3&(p).  For  the  purpose  of  explaining 
this  proposition,  it  may  be  observed  that  the  action 
of  covenant  broken,  upon  express  covenants,  being 
founded  only  on  privity  of  contract,  will  not  lie,  at 
common  law,  between  the  assignees  of  the  lessor  and 
those  of  the  lessee ;  because  that  privity  does  not 
exist  between  them.  But  the  statute  above  men- 
tioned expressly  extends  '  the  same  remedy'  upon 
such  covenants,  to  and  against  the  assignees  of  les- 
sors and  lessees,  as  lessors  and  lessees  themselves 
had  by  the  common  law(<?) ;  and  according  to  the 
construction  given  to  the  statute,  the  remedy  afford- 
ed by  it,  to  and  against  assignees,  is  to  be  pursued  in 

(p)  Bac.  Abr.  Actions  Local,  &c.  A. (a.)  Covenant,  E.  6.  1  Saund. 
241,  b.  (n.  6.)     Cro.    Car.    183.      1  Lev.  259.     3  T.  R.  401-2. 

1  Wils.  165.      1  Vent.  10.     2  Keb.   439.  448.  468.  492.— Cont. 

2  Show.  200.  Corn.  Dig.  Actions,  N.  4. 
(</)  Bac.  Abr.  Covenant,  E.  6. 

17 


126  GENERAL  RULES  OF  PLEADING. 

CHAP.    '  tne  same  manner7  in  which  the  common  law  gave 
in.      it  to  and  against  their  respective  assignors,  (the  orig- 
inal lessors  and  lessees) :  And  therefore,  as  actions 
of  covenant  broken,  between  lessors  and  lessees,  are 
by  the  common  law  transitory ;  it  follows  that  ac- 
tions, on  express  covenants  between  their  respective 
assignees,  are  transitory  by  virtue  of  the  above  statute. 
.  And  yet,  as  has  been  before  shown,  debt  by  the  as- 

Ante,  5  118.  J  •> 

signee  of  the  lessor,  against  the  lessee,  is  local :  The 
action  being  given  by  the  common  law,  and  founded 
on  privity  of  estate. 

^  122.  6.  So  also,  debt  or  covenant  broken  for 
rent,  brought  by  the  lessor,  his  personal  representa- 
tive or  assignee,  against  the  executor  or  administra- 
tor of  the  lessee,  charging  him  for  rent  accruing, 
after  the  lessee's  death,  is  local(r).  For  as  the  per- 
sonal representative  of  the  lessee  of  a  term  for  years 
is  chargeable,  during  his  own  possession,  as  assignee 
of  the  lease ;  he  is,  in  this  latter  capacity,  privy  in 
estate  to  the  lessor :  And  therefore,  if  the  action  is 
brought  by  the  lessor  or  his  representatives,  (in 
which  case  the  remedy  is  given  by  the  common  law) ; 
it  is  local,  as  being  founded  on  privity  of  estate.  And 
if  the  action  is  brought  by  the  lessor's  assignee  ;  the 
statute  32  Hen.  8,  which  gives  him  the  remedy,  (for 
the  common  law  gives  him  none,  against  the  assignee 
of  the  lease),  makes  it  local,  by  its  own  provisions, 
as  before  stated,  §  119. 

(r)  Bac.  Abr.  Actions  Local,  &c.  A.  (a.)  3  Co.  24.  Com.  Dig. 
Actions,  N.  4.     2  Lev.  80.     Gilb.  H.  C.  P.  91. 


GENERAL  RULES  OF  PLEADING.  J27 

^  123.     7.  On   the  other   hand,  if  the  executors    CHAP. 
or  administrators  of  the  lessee,  in  either  of  the  above       in. 

cases,-  are  charged  as  the  representatives  of  the  lessee,  

and  not  as  assignees  of  the  term,  (as  where  they  are 
sued  for  rent  accruing  during  the  lessee's  life)  ;  the  transit*^ 
action  is  transitory (5).  For  in  such  a  case  they 
are  liable,  not  by  reason  of  any  interest  of  their  own 
in  the  term,  and  therefore  not  upon  privity  of  estate ; 
but  upon  privity  of  contract,  devolving  upon  them 
from  the  lessee  whom  they  represent. 

^  124.  It  appears,  from  the  preceding  distinc- 
tions, that  where  an  action,  founded  on  a  lease,  is 
given  by  the  common  law,  if  an  assignee  of  the  re- 
version, or  of  the  term,  is  party  to  the  suit,  it  is  lo- 
cal :  Since  in  all  such  cases,  the  action  is  founded 
on  privity  of  estate :  But  that  where  the  action  is 
given  by  statute,  it  may  be  either  local  or  transitory  f 
as  the  fair  construction  of  the  statute  may  appear  to 
warrant. 

&  125.  Assumpsit   for  use  and  occupation,  though  For  use  and 

.    „  r  .  f.  ,    occupation. 

substantially  an  action  tor  rent,  issuing  out  or  a  real 
subject,  is  not,  by  the  law,  considered  as  such,  and 
is  therefore  transitory(t) :  For  the  plaintiff's  title 
being  immaterial (11),  the  legal  liability  of  the  de- 
fendant is  considered  as  a  merely  personal  duty,  par- 

(*)  3  Co.  24.    Bac.  Abr.  Actions  Local,  &c.  A.  (a.)       Latch, 
262.  271. 

(0  6  T.  R.  62.     6  East,  348.   2  Chitt.  PI.  8,  (n.  c.)  174,  (n.  c.) 
(u)  Sayer,  13.     1  Wils.  314.     2  Ib.  208.     2  Chitt.  PI.  9,  (n.  c.) 


128  GENERAL  RULES  OF  PLEADING. 

CHAP,    taking  no  more   of  a  local  quality,  than  a   liability 
in.       arising  from  goods  sold,  labor  clone,  or  money  lent. 


Venue. 


^  126.  But  though  this  action  is  in  its  nature 
transitory  transitory,  and  though  it  is  therefore  unnecessary,  in 
declaring,  to  state  the  place  where  the  land  occupied 
is  situated(V)  ;  yet  if  the  declaration  does,  though 
unnecessarily,  describe  the  land  as  lying  m  a  particu- 
lar place  —  not  by  way  of  venue  for  the  promise,  but 
of  local  description  ;  —  the  place,  thus  stated,  must 
be  the  true  one,  or  the  plaintiff  will  be  liable  to  a 
nonsuit(w).  For  though  the  venue,  properly  so  call- 
ed —  i.  e.  the  place  where  the  contract  is  alleged  to 
have  been  made  —  is  immaterial,  (the  action  being 
transitory  ;)  yet  the  place,  named  for  the  purpose  of 
describing  the  land,  is  material,  as  entering  into  the 
description  of  the  cause  of  action.  And  hence,  a  mis- 
description  of  the  place  where  the  land  lies  is  in 
nature  of  a  variance,  in  stating  the  consideration  of 
the  promise.  If  therefore  the  declaration  describes 
the  land,  as  lying  in  the  parish  of  A.,  when  it  is  ac- 
tually situate  in  the  parish  of  B.,  the  plaintiff  cannot 
recover  :  because  the  proof  will  not  support  the  dec- 
laration. 


All   criminal    prosecutions   remain   local, 
under  the  ancient  rule  of    the  common    law,    that 

(c)  6  T.  R.  62.  6  East,  348.  2  Chitt.  PI.  9,  (n.  d.)  174,  (n. 
c.)  3  M.  &  S.  380. 

(a)  6  East,  348.  352.  6  T.  R.  62.  1  Taunt.  570.  1  Esp. 
Rep.  273.  3  Campb.  235.  Vid.  13  East,  9.  4  B.  &  A.  619. 
3  Stark.  Ev.  1571,et.  seq. 


GENERAL  RULES  OF  PLEADING. 

every  issue   in  fact,  triable   by  jury,  must   be  tried   CHAP. 
in   the  county  in  which  the  fact  to  be  tried  occur-      in. 
red(a').     For  the    distinction,   since   introduced,   be 
tween  local  and   transitory  remedies,  was    expressly 
limited  to  civil  suits. 

§  128.  Hence  no  crime,  committed  within  the 
territorial  limits  of  one  sovereign  state,  can  be  tried 
in  any  other(y).  For  the  penal  laws  of  every 
sovereign  state  are,  in  the  strictest  sence,  local,  and 
cannot  therefore  be  enforced  by  the  tribunals  of 
any  other  state(z)  :  It  being  an  elementary  princi- 
ple of  public  and  municipal  law,  that  all  offences, 
considered  as  public  wrongs,  offend  that  state  only 
within  whose  limits  they  are  committed  ;  and  no 
state  has  a  right  to  punish,  for  any  other  offences, 
than  those  committed  against  itself. 

^  129.  The  local  actions,  thus  far  enumerated, 
are  all,  (except  so  far  as  the  statute  32  Hen.  8.  has 
prescribed  the  rule,  in  certain  actions,  on  leases), 
made  local  by  the  principles  of  the  common  law. 
But  certain  other  actions,  which  upon  common- 
law  principles  are  transitory,  are,  by  the  English 
statute-law,  required  to  be  brought  in  the  county, 
in  which  the  cause  of  action  in  truth  arose  ;  and  are 
thus  made  local  by  positive  enactments. 

(x)  7  Co.  2.  b.  Com.  Dig.  Action,  N.  5.  9.  1  Saund.  308.  (n. 
1.)  2  Black.  Rep.  1053. 

(?/)  2  Black.  Rep.    1058.    Kel.  80.     2  Johns.  R.  477.  479. 
(«)  3  T.  R.  733.     1  H.  Black.  123. 


statutes. 


1 30  GENERAL  RULES  OF  PLEADING. 

CHAP.        §  130.  Thus,  by  the  statute  21  Jac.  1,  c.  4,  §  2, 

in.      all  actions  and   informations,   &c.    '  for  any  offence 

against  any  penal  statute,'  whether  on  '  behalf  of  the 

Venue.  ,?  .        _ 

Local  and  king,  or  any  other  person,  are  required  to  be  '  laid, 
*c£ons.ry  and  alleged  to  have  been  committed,  in  the  county 
On  penal  where  such  offence  was,  in  truth,  committed,  and 
not  elsewhere  ;  or  the  defendant,  upon  the  general 
issue,  shall  be  found  not  guilty'(a).  When,  how- 
ever, two  material  facts  are  necessary  to  constitute 
an  offence  against  a  penal  statute,  if  one  of  those 
facts  occurred  in  one  county,  and  the  other  in  ano- 
ther ;  the  action  may  be  laid  in  either  of  the  two 
counties,  according  to  the  analogy  of  the  common 
law  rule  in  similar  cases (6).  This  in  an  action  on 
the  statute  of  usury,  if  the  contract  was  made  in  the 
county  of  A.,  and  the  illegal  interest  received  in  the 
county  of  B.  ;  the  venue  may  be  laid  in  either  of 
those  counties.  It  appears  to  be  settled,  in  the  con- 
struction of  this  statute,  that  it  does  not  extend  to 
any  action  given,  by  a  penal  statute,  to  the  party 
aggrieved  by  the  offence  prohibited :  So  that  the 
action,  when  brought  by  such  a  party,  is  still  transi- 
tory, as  at  common  law(c). 

§  131.  By  the  common  law  then,  (as  the  last 
observation  implies),  actions  for  the  recovery  of 
statute-penalties,  are  transitory  (d).  For  though 

(a)  Com.  Dig.   Action,   10.     Bac.   Abr.  Action,  q.  t.   C.     1 
Chitt.  PI.  276-7.     1  Salk.  373.     5  Mod.  425.  4  Ib.  158. 
(6)  7  Co.  1.  2  T.  R.  238.  7  Ib.  583.  2  Bos.  &  P.  381. 

(c)  Bac.  Abr.  Action,  q.  t.  C.     1  Show.  354. 

(d)  lid. 


GENERAL  RULES  OF  PLEADING. 

the  object  of  every  prosecution  for  such  a  penalty,     CHAP. 
is  the  punishment  of  the  defendant  for  an  offence ;       in. 

yet  an  action  brought  for   this   purpose,  is   in  form  a   

civil  suit(e)  ;  and  as  regards  the  venue,  as  well  as  in 
most  other  respects,  the  nature  or  character  of  eve- 
ry suit,  or  prosecution,  is  decided  by  its  form.  In- 
deed, a  pecuniary  penalty  is  in  law  considered  as  a 
debt,  due  from  the  offender  to  the  prosecutor,  or 
plaintiff  in  the  action^/]) ;  and  hence  the  action 
brought  for  the  recovery  of  it,  and  which  is  usually 
an  action  of  debt,  is,  by  the  common  law,  transitory ; 
on  the  same  principles  on  which  other  actions  of  debt 
are  generally  so. 

§  132.     From  what  has  been  already   stated,  of  Venue. 

ii  r  /  i  n  >  \      •  11  How  laid  in 

the   law  or  venues,  (ante,  s.  104),  it  results   that  no  thepiead- 
suit  can  be  abated,  nor  in  any  manner  defeated,  on  MOW  the 

,    .  ••     .  declaration. 

the  ground  that  the  venue  is  laid  in  the  wrong 
county,  unless  the  action  is  in  its  nature  local,  or  is 
made  so  by  statute^).  For  in  consequence  of  the 
distinction  between  local  and  transitory  actions,  it 
has  become  an  established  rule,  that  in  transitory 
actions,  the  place  laid  in  the  declaration  draws  to  it- 
self the  trial  of  all  transitory  matters  alleged  in  the 
subsequent  pleadings.  And  the  defendant  cannot 
therefore  state,  in  his  plea,  any  other  venue  for  the 

(e)  Covvp.  382.  391.  Willes,  597.  1  Wils.  125.  4  T.  R.  753. 
7  Ib.  257.  3  Ib.  448. 

(/)  Bac.  Abr.  Statute,  K.  Poph.  175.  Palm.  400.  Latch,  19. 
3  Black.  Com.  160-161. 

(g)  3  Black.  Com.  294.  Bac.  Abr.  Actions  Local,  &c.  B.  Com. 
Dig.  Pleader.  S.  9.  Cowp.  177.  1  Saund.  74.  (n.  2.)  Gilb. 
H.  C.  P.  89—90. 


GENERAL  RULES  OF  PLEADING. 

CHAP.    facts  which  he  pleads,  than  that  laid   in  the  declara- 
iii.       tion  ;  unless  the  nature  of  the  defence  renders  ano- 

ther  venue  necessary(h)  ;  i.  e.  unless  his  defence  is 

founded  upon  something  local,  arising  in  a  different 
in°the  pica,    place  from  that  which  is  laid  in  the  declaration. 

&c. 

^  133.  If  therefore,  in  a  transitory  action,  the 
cause  of  which  is  laid  in  the  county  of  A.,  (in  which 
county  the  suit  is  brought^  the  defendant  pleads 
any  transitory  matter  of  defence,  as  having  arisen  in 
the  county  of  B. ;  the  plea  is  ill  in  form(z').  For  if 
the  defendant  might,  without  necesssity,  thus  deviate 
from  the  venue  laid  in  the  declaration,  he  would, 
upon  original  common-law  principles,  be  able  to 
change  or  oust  the  venue  in  transitory  actions  ;  and 
thus  to  subvert  the  rule,  which  allows  the  plaintiff, 
in  such  actions,  to  bring  his  suit  in  what  county,  and 
lay  his  venue  in  what  part  of  it,  he  may  choose  : 
Since,  if  issue  was  taken  upon  the  plea,  in  the  case 
supposed,  the  original  rule  of  the  common  law  would 
require  the  trial  to  be  had  in  the  county  of  B. 

^  134.  If  then,  in  an  action  of  assault  and  bat- 
tery, trover,  trespass  for  taking  goods,  slander,  as- 
sumpsit,  &c.  (in  all  which  the  place  in  the  declara- 
tion is  immaterial,  and  the  action  transitory),  the  de- 
fendant pleads  any  matter  of  defence,  which  is  not 
local — and  lays  it  at  a  place  not  mentioned  in  the 

(/i)  Com.  Dig.  Pleader,  E.  4.  3  Lev.  113.  1  Saund.  8.  a. 
(n.  2.)  85.  (n.  4.)  247.  (n.  1.)  2  Ib.  5.  d.  e.  (n.  3.)  2  H.  Black. 
161.  Com.  Dig.  Action,  N.  12.  Pleader,  C.  20.  1  Chitt.  PI. 
509.  Co.  Litt.  281.  b. 

(t)  lid. 


GENERAL  RULES  OF  PLEADING. 


133 

declaration  ;  the  plea  is  ill,  on  special   demurrer (/c).    CHAP. 
If,  for  example,  in  an  action  of  assault  and  battery       m. 
laid  in  the  county  of  A.,  the  defendant  pleads  son 


Venue 


laid 


assault  demesne,  in  the  county  of  B. ;  or  if  in  tres-  H^ 
pass  for  taking  goods  in  the  county  of  A.,  the  plea  £cthePlea> 
is  a  license,  in  the  county  of  B. ;  or,  if  in  assumpsit 
on  a  promise  laid  in  one  county,  the  defendant 
pleads  fraud,  duress,  accord  and  satisfaction,  usury, 
&c.  in  another ;  the  plaintiff  may  with  safety  de- 
mur specially  to  the  plea(/).  For  these  several 
defences,  in  whatever  place  they  may  have  arisen,  are 
respectively  as  available,  as  if  they  had  occurred 
elsewhere ;  and  there  can,  therefore,  be  no  necessity 
of  laying  them  at  any  other  place,  than  that  stated 
in  the  declaration. 

^  135.  But  although  the  cause  of  action  be  tran- 
sitory— as  in  the  several  examples,  last  stated  ;  yet, 
if  the  nature  of  the  defence  is  local — so  that  the  fact, 
that  it  arose  in  a  particular  county  or  place,  different 
from  that  stated  in  the  declaration,  is  necessary  to 
be  alleged,  in  order  to  adapt  the  plea  to  the  matter 
of  the  defence ;  the  defendant  is  at  liberty  to  devi- 
ate, in  his  plea,  from  the  county  or  place  alleged  in 
the  declaration(w).  For  if,  in  such  a  case,  he  was 
confined  to  the  county  or  venue  laid  by  the  plaintiff, 
he  might,  by  the  false  venue  in  the  declaration,  be 

(k)  lid. 

(/)  lid.  Co.  Litt.  282.  b.  Cro.  Eliz.  667.  842.  860.  1  Ld. 
Ray.  120.  3  Lev.  113.  2  Mod.  271. 

(m)  Cro.  Eliz.  184.  Co.  Litt.  282.  b.  3  Lev.  113.  227.  1 
Ld.  Ray.  120.  1  Sauncl.  85.  (n.  4.)  247.  2  Ib.  5.  b.  (n.  3.) 
Carth.  326.  Hob.  5. 

18 


GENERAL  RULES  OF  PLEADING. 


CHAP,    utterly  deprived  of  his  defence.     For  when  issue  is 
in.      joined  upon  a  local  fact,  the  place  is  of  the  substance 
-  of  the  issue,  and  must  be  proved  as  laid. 

Venue. 

in°theplea,  ^  136.  Thus,  if  a  sheriff  of  the  county  of  A., 
having  made  an  arrest,  by  authority  of  law,  in  that 
county,  is  sued  for  it,  in  an  action  of  assault  and 
battery  and  false  imprisonment,  alleged  to  have  been 
committed  in  the  county  of  B.  ;  he  may,  in  his 
plea,  justify  the  arrest,  as  having  been  made  in  the 
former  county(/i).  For  as  his  official  authority, 
existing  only  in  the  county  of  A.,  was  local  ;  his  de- 
fence, which  is  founded  upon  that  authority,  is 
necessarily  so.  If  then,  he  were  obliged  to  justify 
the  arrest,  as  made  in  the  county  of  B.  ;  he  \vould, 
of  course,  be  reduced  to  the  necessity  of  proving  his 
authority  to  arrest  in  that  county,  (which  according 
to  the  facts  supposed,  he  could  not  do),  or  of  losing 
the  benefit  of  a  justification,  which  is  in  law  com- 
plete, 

^  137.  Upon  the  same  principle,  if  a  constable 
of  the  town  of  A.,  makes  arrest  in  that  town,  in 
virtue  of  his  office,  and  is  sued  for  it  in  an  action,  in 
which  the  trespass  is  laid  in  the  town  of  B.,  in  the 
same  or  a  different  county  ;  he  is  allowed  to  justify 
the  arrest  in  the  town  of  A.(o).  For  the  town, 
which  limits  his  authority,  is  material  to  his  justifi- 
cation, as  is  the  county  to  that  of  the  sheriff,  in  the 

(w)   1  Saund.  85.   (n.  4.)    247.     2  Ib.   5.  b.  c.  (n.  3.)     1  Ld. 
Ray.  120.     Cro.  Eliz.  174.  184. 
(o)   lid. 


GENERAL  RULES  OF  PLEADING.  135 

case  last  before  supposed.     The  same  principle  ap-     CHAP. 
plies  to  all  cases,  in  which  the   defence  is  local,  and       in. 
in  which  the   place  laid  in  the  declaration  is  not  the 
true  one  ;  because  in  every  such  case,   if  issue   is 
taken  on  the  plea,  the  place  must  be  proved  as  laid. 


&c. 


^  138.  But  in  all  such  cases,  it  is  necessary  for 
the  defendant  to  traverse  the  place  laid  in  the  de- 
claration :  i.  e.  to  deny  that  he  is  guilty  of  the  al- 
leged wrong  in  that  place,  or  in  any  other  than  the 
one  stated  in  his  pleaQ/).  For  the  place  of  the  al- 
leged wrong  is,  by  the  defendant's  plea,  made  ma- 
terial and  traversable  :  And  it  is  a  general  principle, 
that  a  party  who  does  not  traverse  what  is  material 
and  traversable,  in  his  adversary's  pleading,  tacitly 
admits  it  to  be  true(</). 

^  139.  By  the  establishment  of  the  rule,  that 
the  venue  laid  in  the  declaration  draws  to  itself  the 
trial  of  all  transitory  matters,  the  doctrine  of  venues 
underwent  an  essential  change.  For  as,  under  this 
rule,  no  other  venue  for  transitory  matters  can  be 
laid  in  the  subsequent  pleadings  ;  there  seems  now 
to  remain  no  very  substantial  reasons  for  requiring, 
for  the  statement  of  such  matters  in  these  latter 
pleadings,  any  venue  at  all. 

§  141.  In  accordance  with  the  principles,  which 

(p)  2  Saund.  5.  c.  d.  e.  (n.  3.)  1  Ib.  85.  (n.  4.)  Ib.  8.  a.  (n. 
2.)  1  Sid.  294.  Cro.  Eliz.  167.  705.  842.  Cro.  Jac.  45.  372. 
3  Lev.  227.  Garth.  326. 

(7)  1  Salk.  91.  1  Wils.  338.  Bac.  Abr.  Picas,  &c.  Introd. 
Ib.  Pleas,  &c.  H.  4.  Vide  post,  ch.  7. 


GENERAL  RULES  OF  PLEADING. 

CHAP,    have  now  been  stated,  Lord  Ch.  J.  Eyre,  in  deliver- 
in,      ing  the  opinion   of  the  court  of  C.  B.,  in  the  case  of 

Ederton  v.  Ilderton,  (after  having  recognized  the  rule, 

that  the  venue  laid  in  the  declaration  draws  to  itself 
the  trial  of  all  transitory  matters,  alleged  in  the  sub- 
sequent pleadings),  observes  that  '  the  distinction 
between  laying  no  venue  at  all,  in  a  plea,  and  being 
obliged  to  lay  the  same  venue,  as  is  to  be  found  in 
the  declaration,  will  not  be  a  very  substantial  one' — 
and  that  it  appears  to  be  'a  distinction  without  a 
difference(r). 

^  142.  It  would  seem  therefore,  on  principle,  that 
in  the  pleadings  which  follow  the  declaration,  the 
laying  of  a  venue  to?  transitory  matters,  is  not  now 
necessary,  even  in  point  of  form  ;  and  therefore, 
that  the  omission  of  it  will  not  injure  those  plead- 
ings, even  on  special  demurrer (5).  Indeed  this 
precise  point  was  adjudged  in  the  case,  just  referred 
to,  of  Ilderton  v.  llderton ;  and  in  the  subsequent 
case  of  Neale  v.  De  Garay,  the  doctrine  was  ap- 
proved of,  by  the  Court  of  King's  Bench(£). 

For  Local         ^  143.  And  since  the  statutes  16  &  17  Car.  2.  c. 

defences. 

8.,  and  4  &  5  Ann.  c.  16,  §  6.  (by  which  the  an- 
cient law  regarding  locality  of  trials  has  been  still 
further  altered),  the  laying  of  a  venue,  for  even  local 
matters,  in  the  pleadings  subsequent  to  the  declara- 
tion, appears  now  to  be,  in  the  English  law,  but 

(»•)  2  H.   Black.   145.    161—2.   &  vid.  7  T.  R.  243.  247.     1 
Saund.  8.  a.     Yelv.  12.  a.     2  Caines'  R.  372.     6  Johns.  R.  33. 
(s)  lid. 
(0  7  T.  R.  243.  247. 


GENERAL   RULES  OF  PLEADING. 

mere  form(%2).     For  by  the  former  of  these   stat-    CHAP. 
utes,    it  is  enacted  that  '  after  a  verdict,  judgment       in. 
shall  not  be  stayed   or  reversed,  for  that   there   is   no 
rig-Jit  venue  ;    so  as  the   cause  were  tried   by  a  jury 
of  the  proper  county  or  place,  where  the  action  is  defences. 
laid'(u).       And    this  enactment   not   only  cures  a 
wrong  venue,  laid  in  the  true  county  ;    but   also  aids, 
after  verdict(23),  a  judgment  rendered  in  a   wrong 
county ;   even  though  it  appear  upon  the  record,  that 
the  issue  was  tried   in  a  county,  other  than  that  in 
which  the  matter    in   issue   arose(f)  ;    whereas,    by 
the    ancient   law,   if  it   appeared    upon    the  record, 
that  the  cause  of  action  arose  in  a  county  different 
from  that,  in  which  the  action  was    laid  ;    the  mis- 
take was  incurable,  and  the  judgment  erroneous(w) 
(23  a),  unless  the  error  was  waived  by  both  parties,  Post  §162- 
in  the  manner  hereafter  mentioned. 

§  144.  The  latter  of  the  two  statutes  above  men- 
tioned (4  &  5  Ann.  c.  16.  §  6.)  enacts,  'that  every 
venire  facias,  for  the  trial  of  any  issue,  in  any  action 

(«)  Bac.  Abr.  Amendment,  &c.  B.     2  Saund.  5.  e.  (n.  3.) 
(t>)  1  Saund.  247.  (n.   3.)     Willes,   431.     7   T.   R.    583.     2 

Saund.  5.  g.  (in  noiis.)    2  East,  580.   1  Chitt.  PI.  283.     1  Saund. 

74.  (n.  2.) 

(«>)  Com.  Dig.  Action.  N.  4.  6.  1  Saund.  74.  (n.  2.)  1 
Chitt.  PI.  283. 

(22)  That  is,  as  regards  the  place  of  trial. 

(23)  This  provision,  which  applies  only  to  judgments  after  ver- 
dict, is  by  the  statute  4  Ann.  c.  16.  §  2.  extended  to  judgments 
by  confession,  nil  dicit,  or  non  sum  informants.    Bac.  Abr.  Amend- 
ment, &c.  B.     2  Saund.  5.  e.  (n.  3.) 

(23  a)  And  the  same  rule  seems  still  to  be  applied  to  actions, 
transitory  at  common  law,  but  made  local  by  statute.      Vide  5  M. 
&  S.  427.     3  Ib.  430  ;   and  cases  there  cited. 


GENERAL  RULES  OF  PLEADING. 

CHAP.  or  suit*  shall  be  awarded  of  the  body  of  the  proper 
in.  county,  where  such  issue  is  triable^x)  :  The  import 

of  which  enactment,  expressed  in  more  familiar  lan- 
guage, is,  that  the  jury,  by  whom  any  issue  is  to  be 

defences,  tried,  in  any  particular  county,  are  to  be  summoned 
from  the  county  at  large,  without  reference  to  the 
common-law  rule,  requiring  them  to  come  from  the 
immediate  vicinage,  in  which  the  matter  in  issue 
arose :  which  rule  had,  indeed,  by  various  evasions 
and  alterations,  been  greatly  relaxed  in  practice,  be- 
fore the  statute  of  Anne  was  passed  (y). 

§  145.  This  latter  enactment,  by  removing  the 
necessity  of  drawing  the  jury  from  the  immediate 
vicinity,  in  which  the  matter  in  issue  arose,  or  is  al- 
leged to  have  arisen,  has  virtually  abrogated  the  an- 
cient law  of  venues,  properly  so  called — inasmuch  as 
it  has  destroyed  all  distinction  between  true  and 
false  venues,  in  one  and  the  same  county ;  as  the 
statute  of  Charles  2.  (extended  by  the  second  section 
of  the  16th  chapter  of  the  statute  of  Anne),  has  ren- 
dered all  distinction  between  different  counties,  im- 
material after  verdict,  confesssion,  nil  dicit,  or  non  sum 
informatus(2ty — provided  the  trial  in  the  case  of 

(x)  Bac.  Abr.  Venue,  D.     3  Black.  Com.  360. 
(</)  Co.  Litt.  157.     3  Black.  Corn.  360. 

(24)  A  confession,  (or  cognovit  actionem)  is  an  express  ac- 
knowledgment, by  the  defendant,  upon  the  record,  of  the  plain- 
tiff's right  of  action.  (3  Black.  Com.  397.  3  Chitt.  PI.  520. 
671.)  By  a  nil  dicit  or  default,  is  meant,  that  the  defendant 
offers  no  plea  whatever  to  the  declaration,  and  thus  tacitly  admits 
it  to  be  true.  (3  Black.  Com.  397.)  A  non  sum  informalus  is 
a  suggestion  or  admission,  by  the  defendant's  attorney,  that  he  has 


GENERAL  RULES  OF  PLEADING.  139 

a  verdict  found),  was  by  a  jury  of  the  same  county,    CHAP. 
in  which  the  '  action  was  laid'  (25).  in. 

,,        ,  Venue. 

&  146.    From    the    combined   operation   01    these 

For  local 

statutes,  it  has  resulted,  as  has  been  already  sug-  defences. 
gested,  that  the  laying  of  a  venue  for  even  local  mat-  §  143- 
ters,  in  the  pleadings  subsequent  to  the  declaration, 
has  become,  in  effect,  matter  of  form  as  regards  the 
place  of  trial.  For  the  new  venue  laid  for  any  local 
matter,  in  the  plea,  does  not  now  (as  formerly)  draw 
to  itself  the  trial  of  such  matter  ;  and  the  conse- 
quence of  the  distinction  between  things  local  and 
transitory  has  finally,  been,  that  in  transitory  actions, 
the  defendant  can,  by  no  plea,  abate  or  defeat  the  suit, 
on  the  ground  that  the  venue  or  county,  in  the  dec-  Ante,  §  132. 
laration,  is  not  the  true  one (2).  And  since  the  stat- 
ute 16  and  17  Car.  2.  ch.  8,  if  the  defendant  pleads 
even  a  local  defence  to  a  transitory  action  ;  he  can 
have  no  opportunity  to  object  to  the  county,  in  which 
the  action  is  brought,  or  to  the  venue  laid  in  the  decla- 

(z)  3  Black.  Com.  294.  Bac.  Abr.  Actions  Local,  &c.  B. 
Com  .Dig.  Pleader,  S.  9.  Cowp.  177.  1  Saund.  74,  (n.  2.)  Gilb. 
H.  C.  P.  89-90. 

no  instructions  to  make  any  answer  to  the  plaintiff,  or  any  defence 
for  his  client ;  and  is,  therefore,  virtually  a  species  of  default. — 
(Id.) 

(25)  The  statute  of  Anne,  having  been  construed  not  to  em- 
brace actions  on  penal  statutes,  was  by  the  subsequent  act,  24 
Geo.  2.  c.  18,  extended  to  this  latter  class  of  actions  (3  Black. 
Com.  360.)  Now,  therefore,  the  jury  is,  by  the  English  law,  to 
be  summoned  from  the  body  of  the  county,  in  all  civil  actions. 
(Lawes'  PI.  28.  29.) 


140  GENERAL  RULES  OF  PLEADING. 

CHAP,    ration,  till  after  verdict ;  and  then,  by  the  express  pro- 
iii.      visions  of  that  act,   the  objection  is  too  late :     The 
mistake  being  cured  bj  the  verdict. 

Venue. 

defences..,  §  147.  And  in  regard  to  the  venue  laid  in  the 
declaration,  as  distinguished  from  the  county(26),  in 
a  transitory  action,  all  exception,  in  any  and  every 
stage  of  the  suit,  is  precluded  by  the  sixth  section 
of  the  statute  of  Anne,  before  recited.  There  now 
remains,  therefore,  no  way  in  which  the  defendant, 
in  a  transitory  action,  can  oblige  the  plaintiff  to 
change  the  county  laid  in  the  declaration,  except  by 

Post,  §§151.  motion,  addressed  to  the  discretion  of  the  court,  and 

152. 

which,  under  circumstances  to  be  hereafter  stated, 
the  court  has  power  to  grant.  Nor  is  there  any 
mode  whatever,  in  which  the  defendant,  in  such  an 
action,  can  take  advantage  of  a  false  venue  laid  in  the 
true  county. 

^  148.  Since  the  enactment  of  these  statutes, 
therefore,  it  has  become  the  constant  practice  in  Eng- 
land, when  issue  is  taken,  even  upon  a  local  defence 
laid  in  a  foreign  county  (a  county  other  than  that 
mentioned  in  the  declaration),  to  try  the  issue  in 
the  county,  in  which  the  action  is  brought(a) — 

(a)  1  Saund.  74,  (n.  2.)  2  Ib.  5.  d.  e.  (n.  3.)  Ld.  Ray.  330. 
1212.  3  Black.  Com.  294. 

(26)  The  word  venue,  in  its  present  acceptation,  usually  in- 
cludes as  well  the  county  named,  as  the  place  or  vicinage  laid 
within  it ;  though,  in  strictness,  the  term  signifies  the  vicinage 
only  ;  in  which  latter  sense,  it  is,  in  the  present  instance,  used  in 
the  text. 


GENERAL  RULES  OF  PLEADING. 


which  practice  is  subject  only  to  the  power  of  the    CHAP. 
court,  on  motion,  to  remove  the  cause  for  trial,   into      in. 
the  county   in  which  the   cause  of  action  arose.     It 


appears  then,  that  according  to  the  English  law,  as 
it  now  stands,  and  subject  to  the  single  qualification  defences. 
just  mentioned,  the  venue,  (or  rather,  the  county), 
laid  in  the  declaration,  in  transitory  actions,  regular- 
ly draws  to  itself  the  trial,  as  well  of  all  local,  as  of 
all  transitory  matters  alleged  in  the  subsequent  plead- 
ings. Hence,  if  in  a  transitory  action,  brought  in 
the  county  of  A.,  issue  is  joined  on  any  local  matter 
of  defence,  laid  in  the  county  of  B.  ;  the  trial  is 
regularly  had  in  the  county  of  A,(b)  :  The  defend- 
ant having,  in  general,  no  power  to  change  the 
place  of  trial,  before  verdict  ;  and  the  trial  in  the 
county  of  A.  being,  after  verdict,  aided  by  the  statute 
of  Charles  2,  before  mentioned. 

^  149.  But  before  that  statute  W7as  made  a  trial 
in  the  county  of  A.,  in  the  case  last  supposed,  would 
have  been  a  mistrial,  and  as  such,  a  sufficient  ground 
for  arresting  the  judgment(c).  So  strict,  indeed,  Ante,§  133. 
was  the  original  rule  of  the  common  law,  in  regard 
to  the  locality  of  trials,  that  if,  in  a  transitory  action, 
the  defendant  pleaded  the  general  issue  to  apart  of 
the  alleged  cause  of  action,  and  dvlocal  justification 
to  the  residue  ;  the  general  issue  must  have  been 

(6)  1  Saund.  247.  (n.  2.)  1  Vent.  22.  263.  T.  Ray.  181. 
2  Saund.  5.  e.  (n.  3.)  2  Lev.  164.  3  Ib.  394.  7  T.  R.  583. 
Carth.  448.  12  Mod.  8. 

(c)  Gouldsb.  38.  88.  Cro.  Eliz.  261.  (468.)  870.  Com.  Dig. 
Action,  N.  6.  1  Saund.  247.  Mo.  257.  Hob.  5.  2  Saund.  5. 
^d.  (n.  3.) 

19 


GENE  RAL  RULES  OF  PLEADING. 


CHAP,    tried  in  the  county,  in  which  the  action  was  laid, 
in.      and  the  justification,  in  the  county  laid  in  the  plea(d). 


§  150.  It  is  however  still  necessary,  notwith- 
cMences.  standing  the  foregoing  alterations  in  the  law  of  ve- 
nues, that  in  alleging  local  matter,  even  in  the  plead- 
ings which  follow  the  declaration,  the  place  in 
which  it  arose  should  be  truly  stated.  Thus,  (as  in 
Ante,  §136.  a  case  before  supposed),  if  the  sheriff  of  the  county 
of  A.  makes  a  lawful  arrest,  under  legal  process,  or 
virtute  officii,  in  that  county,  and  is  sued  for  it,  in 
trespass  for  assault,  battery,  &c.  alleged  to  have 
been  committed  in  the  county  of  B.  ;  it  is  necessa- 
ry that  he  should  justify  the  arrest,  as  having  been 
made  in  the  county  of  A.(e).  This  is  necessary, 
however,  not  for  the  purpose  of  substituting  the  true 
venue,  for  that  laid  in  the  declaration,  or  in  other 
words,  not  for  the  purpose  of  altering  the  place  of 
trial  ;  but  for  the  purpose  of  rendering  the  matter 
of  his  plea  available  :  It  being  indispensable  to  the 
sufficiency  of  his  defence,  that  the  arrest  should  be 
shown,  in  the  plea,  to  have  been  made  within  the 
local  limits  of  his  authority  as  sheriff, 


The  power  of  the  court  to  change,  on  the 
defendant's  motioji,  the  venue  laid  in  the  declara- 
tion, in  transitory  actions,  has  already  been  inci- 
dentally mentioned  —  a  power,  supposed  to  be  de- 

(d)  1  Saund.  247.  (n.  1.)     Cro.  Jac.  87.  127.     3  Lev.  394. 
Co.  Litt.  125.  n. 

(e)  Cro.  Eliz.   174.  184.     1  Saund.    85.    (n.  4.)      2.  Ib.  5.  c. 
(n.  3.)     1  Ld.  Ray.  120. 


GENERAL  RULES  OF  PLEADING. 


rived  from  the  statute  6  Rich.   2,   c.  2.(f).     This    CHAP. 
power,   which  is  discretionary,  has  been   exercised        m. 
under  a  rule   of  practice,  by  the   superior  courts  of 
Westminster,    from   the  reign  of  James  the   First  ; 

•  i  Change  of. 

m  whose  reign  its  exercise  appears  to  have  commenc-  Ante  nottf 


§  152.  Under  this  rule  of  practice,  if  the  defend- 
ant, in  a  transitory  action,  will  make  affidavit  that 
the  alleged  cause  of  action  arose  exclusively  in  a 
foreign  county,  the  court  may,  in  its  discretion,  or- 
der a  change  of  the  venue,  and  award  a  trial  in 
the  latter  county  —  unless  the  plaintiff  will,  on  his 
part,  undertake  to  give  evidence  of  some  matter,  ma- 
terial to  the  issue,  arising  in  the  county  in  which  the 
action  is  brought(h).  And  if  the  plaintiff,  after 
having  entered  into  such  an  engagement,  fails  on  the 
trial  to  comply  with  it,  by  giving  evidence  of  some 
matter  involved  in  the  issue,  and  arising  in  the  coun- 
ty in  which  the  action  is  laid  ;  he  will  be  nonsuit- 
ed(i)  :  His  failure,  in  this  particular,  being  a  viola- 
tion of  the  condition,  on  which  the  venue  in  the  dec- 
laration was  allowed  to  remain  unchanged. 

^  153.  It  is  still  indispensably  necessary,  even  in 
transitory  actions,   that  some    particular   county  be 

(/)  Vid.  Ante,  Note  19.     1  Saund.  74.  (n.  2.) 
(g)  3  Black.  Com.  294.     2  Salk.  670. 

(/i)  2  Black.  Rep.  1032-3.    1  Saund.  74.  (n.  2.)   Cowp.  410. 
2  T.  R.  275.     6  East,  433-4.     Com.  Dig.  Action,  N.  13. 
(i]  lid. 


144  GENERAL  RULES  OF  PLEADING. 

CHAP,    laid   in    the  declaration,    for    the   sake  of  trial (k). 
in.      For   in    every   action,    in   which    there    is  an  issue 

joined,  triable   by  jury,  the  jury-process  must  go  to 

some  particular  county.  But  if  no  county  is  laid  in 
the  declaration,  it  cannot  be  known  from  what 
county  the  jury  shall  be  summoned,  nor,  conse- 
quently, in  what  county  or  place  the  trial  shall  be 
had. 

^  154.  But  as  the  jury  now  come  from  the  body 
of  the  county,  in  which  the  action  is  laid  ;  a  venue, 
strictly  so  called,  (i.  e.  a  particular  vicinage,)  though 
universally  inserted  in  the  precedents,  would  seem, 
in  transitory  actions,  in  general,  to  be  not  indispen- 
sable, on  common-law  principles,  even  in  the  declara- 
tion^) ;  and  so  it  has  been  adjudged(//). 

^  155.  By  the  ancient  rule  of  the  common  law, 
the  omission  of  a  venue,  or  county,  when  necessary, 
appears  to  have  been  an  incurable  defect(m),  by 
reason  of  the  strict  locality  of  trial,  which  that  rule 
required.  But  since  the  distinction  between  things 
local  and  transitory  was  fully  established,  it  has  long 
been  settled,  on  common-law  principles,  that  if  the 
declaration,  in  a  transitory  action,  mentions  no  ve- 
nue or  county ;  it  is  aided  by  the  defendant's  plead- 
ing to  the  action,  any  plea,  that  admits  the  fact,  for 

(k)  Com.  Dig.  Pleader,  C.  20.  Cowp.  176-7.  5  T.  R.  620. 
2  Lev.  227.  Bac.  Abr.  Venue,  C.  3  T.  R.  387. 

(/)  2  H.  Black.  161.     2  East,  501.  arg.     1  Chitt.  PI.  280. 

(//)   3  M.  &  S.  14*. 

(w)  Bac.  Abr.  Venue,  C.     2  Leon.  22.      1  Chitt.  PI.  283. 


GENERAL  RULES  OF  PLEADING.  j  A  c 

the  tfr/a/  o/"  which  some  particular  county  ought  to    CHAP. 
have  been  laid(w)  :     Because  the   fact,  when  admit-      m. 
ted   by  such  a  plea,  requires  no  trial.     And  there- 
fore,  if  in  debt  on  bond,   the  declaration  omits  to 
state  the  county  in  which  the   instrument  was  made,  hoTa 
and  the  defendant  pleads  in  bar  a  release,  payment, 
accord  and  satisfaction,  or  any  other  defence,  which 
admits  the    execution   of   the   bond  ;    the  defect  is 
cured  by  the  plea(o),  on  the  principles  last  stated. 
And  the    same    principles    apply    to    all    transitory 
actions,    in    general,  whether  sounding    in  contract 
or  tort. 

^  156.  And  the  omission  of  a  venue  or  county, 
in  the  declaration,  in  transitory  actions,  is  on  common- 
law  principles  aided  on  a  judgment  by  default(p). 
For  all  the  issuable  facts  stated  in  the  declaration, 
being,  by  the  default,  confessed ;  no  trial  of  them  is 
necessary.  And  now,  by  the  express  provisions  of 
the  statute  16  and  17  Car.  2.  c.  8,  the  omission  of 
a  venue  or  county,  in  the  declaration,  is  aided  by 
verdict(q).  And  the  same  rule  is  extended,  by  the 
second  section  of  the  statute  4  and  5  Ann.  c.  16,  to 
judgments  by  confession,  or  non  sum  informatus(r). 
It  results,  therefore,  that  by  these  two  enactments, 

(n)  Bac.  Abr.  Venue,  C.  Com.  Dig.  Pleader,  C.  20.  85.  6 
Mod.  222.  2  Ld.  Ray.  1040.  Cro.  Jac.  125.  683.  Hob.  82. 
Hardr.  187. 

(o)  Vd' 

(p)  Com.  Dig.  Pleader,  C.  20.'  1  Lutw.  239.    1  Chitt.  PI.  285. 

(q)  Bac.  Abr.  Amendment,  &c.  B.  2  Saund.  5.  e.  (n.  3.)  7 
T.  R.  587. 

(r)  Bac.  Abr.  Amendment,  B. 


GENERAL  RULES  OF  PLEADING. 

CHAP,    tne  want  of  a  venue  or  county,  in  the  declaration, 
in.     in  transitory,   as  also  in  personal    local  actions,    is 

aided  after  verdict,  or  on  judgment  by  confession,  or 

on  non  sum  informatus;  as  the  common  law  had  be- 
fore cured  the  same  omission,  on  judgment  by  nil 
dicit,  (or  default,)  or  on  the  defendant's  pleading  to 
the  action  any  defence,  which  admitted  the  truth  of 
the  declaration. 

Omission  of,      &  157.  But,  as  it  is  still  necessary,  in    point  of 

fatal  on  de-  *  .    '  .  .  J  ' 

murrer.  form,  even  in  transitory  actions,  that  some  county 
be  laid  in  the  declaration  ;  the  omission  of  it  remains 
fatal,  on  demurrer(s).  For  as  the  statutes  before 
mentioned,  which  cure  the  defect  after  verdict, 
confession,  &c.  do  not  aid  it,  under  a  demurrer ;  the 
omission,  when  the  declaration  is  demurred  to,  is  left 
to  operate  as  at  common  law. 

^  158.  But  such  an  omission  in  the  declaration, 
in  transitory  actions,  is  riot  a  ground  of  nonsuit,  nor 
of  any  objection  on  the  trial(t).  Since  no  advan- 
tage can  be  taken  of  defects  apparent  upon  the  face 
of  the  pleadings,  but  by  an  issue  in  law.  It  results 
then  from  the  preceding  rules,  that  in  a  transitory 
action,  a  demurrer  is  the  only  mode,  in  which  advan- 
tage can  now  be  taken  of  the  omission  of  a  county, 
in  the  declaration  :  All  exceptions,  in  any  other 
form,  for  such  a  defect,  being,  as  we  have  seen, 

(s)  Bac.  Abr.  Venue,  C.  T.  Ray.  181.  2  Wils.  355.  3  T. 
R.  387.  1  Chitt.  PI.  285.  14  East,  291.  Vide  5  Mass.  R.  94. 
98. 

(/)  2  Wils.  354.  1  Chitt.  PI.  285.  2  East,  499.  3  T.  R. 
387.  1  Saund.  74.  (n.  2.) 


GENERAL  RULES  OF  PLEADING.  147 

excluded  by  gradual  relaxations  of  the  strictness  of   CHAP. 
the  ancient  rule,  and  by  legislative  enactments.  m. 

^  159.  According  to  the  principles  of  the  com- 
mon law,  as  already  stated,  (ante,  ^  112,)  a  transi-  caiJelf 
tory  action,  the  cause  of  which  has  arisen  in  any  abn>ad.s 
one  county  or  sovereign  state,  may  in  general  be 
brought  in  any  other,  in  which  the  defendant  may 
be  found(w)  :  For  duties  and  liabilities,  of  a  tran- 
sitory nature,  attend  the  person  of  the  party  charge- 
able, wherever  he  may  be.  Hence,  if  a  personal 
contract  is  made,  or  a  personal  tort  committed,  in 
the  kingdom  of  France ;  an  action  will  lie  against 
the  debtor,  or  wrongdoer,  (if  found  in  England,}  in 
an  English  court  of  general  jurisdiction,  and  may, 
in  general,  be  laid  in  any  English  county,  without 
making  mention  of  the  place  where  the  cause  of 
action  actually  arose  (v).  In  such  a  case,  it  is 
necessary  that  some  English  county  be  laid  in  the 
declaration,  for  a  reason  heretofore  explained  ;  viz. 
that  every  action  must  be  laid  in  some  particular 
county  in  the  kingdom  for  the  sake  of  trial.  And 
this  legal  fiction,  like  all  others  devised  for  the 
furtherance  of  justice,  cannot  be  traversed(w). 
Thus,  if  A.  becomes  indebted  to  B.,  or  commits  a 
tort  upon  his  person,  or  personal  chattels,  in  the 

(«)  Com.  Dig.  Action,  N.  7.  Cowp.  161.  177-8.  181.  344. 
2  H.  Black,  145—161.  Co.  Litt.  125.  a.  (n.  1.)  5  T.  R.  616. 
7  Ib.  243.  1  Saund.  74.  (n.  2.) 

(v)  lid. 

(v)  Cowp.  177-8.  179.     3  Black.  Com.  43.  107. 


148  GENERAL  RULES  OF  PLEADING. 

CHAP.    city  of  Paris,  or  of  Canton ;  an  action,  in  either 

in.      case,    may   regularly  be   maintained   against   A.    in 

England,  (if  he  is  there  found,)  upon  a  declaration, 

Venue.  n        •  i  r  • 

alleging  the  cause  of  action  to  have  arisen  in  that 
English  county,  in  which  the  action  is  laid,  without 
taking  notice  of  the  foreign  place. 

Mode  of          ^  160.     But  to  this  rule  there  is  one  exception, 
fo?e"ggna      in  respect  to  the  mode  of  laying  the  county :  If  an 

venue.  .  '        .      ,  .  7-17-7  •    ij 

action  is  brought,  in  an  English  court,  on  a  specialty, 
dated  at  a  place  in  a  foreign  country — as  at  Am- 
sterdam ;  the  declaration  must  describe  the  bond,  as 
made  at  Amsterdam,  for  the  purpose  of  avoiding  a 
variance.  For  if  the  instrument  were  described,  as 
having  been  made  in  any  English  county  ;  it  would 
not,  when  produced,  correspond  to  the  description 
given  of  it  in  the  declaration.  In  this  case,  how- 
ever, the  name  of  the  foreign  place,  at  which  the 
bond  is  dated,  must  be  followed,  (under  a  videlicit,) 
by  that  of  the  county  in  which  the  action  is  laid — 
as  in  the  manner  following  : — '  At  the  city  of  Am- 
sterdam, to  wit,  at  Islington,  in  the  county  of  Mid- 
dlesex'^) :  The  foreign  place  being  named,  for  the 
purpose  of  correctly  describing  the  instrument ;  and 
the  English  county,  for  the  sake  not  only  of  trial, 
but  of  jurisdiction.  For  by  the  theory  of  the  com- 
mon law,  an  English  court  has  jurisdiction  of  such 
matters  only  as  arise  within  the  realm,  or  in  the  body 
of  an  English  county — to  conform  to  which  theory, 

(x)  2  Salk.  660.  Cowp.  161.  177.  178.  2  Ld.  Ray.  1043. 
Bac.  Abr.  Actions  \Local,  &c.  A.  2  H.  Black.  161-2.  Com. 
Dig.  Action,  N.  7.  12.  1  Stra.  612. 


GENERAL     RULES  OF  PLEADING. 

the  fiction,  just  mentioned,  was  invented.     And  as    CH4P 
has    been    stated    already,  the  fiction    employed  for      ni< 
this  purpose   cannot  be  traversed.     For  if   it  were 
traversable,  the  jurisdiction  might  be  ousted,  at  the  Venue' 
pleasure  of  the  defendant,  and  the  administration  of 
justice  obstructed. 

^  161.  But  the  necessity  of  laying  the  true 
place  of  the  execution  of  written  instruments  is  now, 
in  general,  superseded  in  England,  by  the  practice 
of  dating  them,  at  large  ;  i.  e.  without  naming  the 
place  of  execution (T/). — Actions,  the  causes  of  Causes  of 
which  arise  upon  the  high  seas,  and  which  are  cog-  ingonthe 

,  ii'i-      high  seas. 

nizable  by  the   common-law  courts,  may  be  laid  in 
any  county (2). 

^  162.  In  most  cases,  local  actions  in  courts  of  Local  ac- 
general  jurisdiction,   might   be    tried   (even    by   the  byconsent e 
common-law,  and   without  reference  to   the    statute  ty.a"J 
of  16  &  17  Car.  ii.  c.  8)  in  any  county,  by  consent  of 
both   parties   entered   upon   the   record — though  the 
county  should  appear,  from  the  record  itself,  to  be  a 
wrong  one(a).     For  the  consent,  thus  entered,  was 
a  waiver  on  the  record,   of  the   error  which  would 
otherwise  have  been  fatal   to  the  trial.     But  unless 
such  consent  appear  upon  the  record,  it  would  not, 
(where   the   county  appeared,  from   the  body  of  the 
record,   to  be   a  wrong  one),  prevent   error (b).     Be- 

(y)  Com.  Dig.  Action,  N.  7.  12.     1  Saund.  74.  (n.  2.) 

(c)  Cowp.  179. 

(a)  Com.  Dig.  Action,  N.  11.   1  Chitt.  PI.  271.  Cro.  Eliz.  664. 

(6)  lid.  Hob.  5.  c.  n.  2.  (Williams'  ed.)  Bac.  Abr.  Error,  K.  6. 

20 


GENERAL  RULES  OF  PLEADING. 

CHAP,    cause  an  error,  apparent  in  the  body  of  the  record, 
in.       cannot  be  waived,  except  by  what  appears  on  the 

record  itself. — But  by  the  statute  above  mentioned, 

(according  to  the  construction  given  to  it  by  the 
courts),  as  has  been  before  shown,  such  consent  on 
the  record  is  no  longer  necessary  to  prevent  error. 

^  163.  But  in  actions,  brought  for  the  recovery  of 
lands  or  tenements — as  in  ejectment — no  consent  of 
parties,  it  seems,  can  render  a  trial,  in  a  wrong 
county,  effectual,  on  the  principles  of  the  English 
law  ;  though  such  consent,  (while  it  was  necessary), 
would  have  prevented  error(c).  For  the  sheriff  of 
the  county,  in  which  the  action  is  tried,  to  whom 
only,  as  it  seems,  the  execution  can,  in  such  case, 
^ost.  c.5.  §  j^  Directed,  cannot  deliver  possession  of  land  lying 
in  another  county (d).  So  that  there  would  be, 
eventually,  no  means  of  enforcing  the  judgment. — 
In  the  New-England  States,  however,  this  difficulty 
does  not  exist ;  if  it  does  in  any  of  the  United 
States. 


venue  is  no- 


when  no          &  164.    The   general   rule,    (ante,  §  102),   that   a 

i    •  i     /-  i  ?      r 

venue  must  be  laid  for  all  traversable  facts,  is  not 
universal.  Negative  allegations  regularly  require  no 
venue  (e).  For  place  can,  with  no  propriety,  be 
predicated  of  that,  which  has  no  existence.  So 
also,  matters  which  concern  the  person  of  a  party, 
or  of  any  individual  —  as  his  name,  title,  &c.  —  need 

(c)  Palm.  100.     2  Roll.  Rep.  166.  T.  Jon.  199.  T.  Ray.  372. 

(d)  1  Chitt.  PI.  284.     Cowp.  176.     7  T.  R.  588. 

(e)  Plowd.  24.  a.     2  East,  503.     Lawes'  PI.  58. 


GENERAL  RULES  OF  PLEADING: 


not  be  laid  at  any  particular  place  (/");     These  also    CHAP. 
being  facts,  of  which  locality  is  not  predicable.  m. 


§  165.  In  alleging  wrongs  affecting  a  local  sub- 
ject —  as  the  breaking  and  entering  the  plaintiff's 
close,  in  an  action  of  trespass,  or  the  ouster  in  eject- 
ment —  a  formal  venue  need  not  be  laid  for  the 
wrongful  act  complained  of;  although  it  constitutes 
the  gist  of  the  action^).  For  as  the  description, 
which  is  required  to  be  given  of  the  land,  must  state 
as  well  the  parish,  &c.  as  the  county,  in  which  it 
lies  ;  the  place  where  the  act  was  done  will  necessa- 
rily appear,  from  that  description  —  which  thus,  in 
effect,  supplies  the  venue,  without  formally  laying 
one.  And  as  upon  original  principles  of  the  common 
law,  already  stated,  those  facts  only,  which  may  be 
traversed,  require  a  venue  ;  it  follows  that  matters  of 
mere  inducement,  or  aggravation,  require  none(/i)  : 
Because  such  matter  is  not  traversable.  —  The  mode 
of  laying  the  venue,  in  the  English  precedents,  is  by 
placing  the  name  of  the  county  in  the  margin,  at  the 
commencement  of  the  declaration,  in  the  following 
manner  :  —  '  Middlesex,  to  wit'(i)  and,  in  the  body  of 
the  declaration,  '  the  county  aforesaid,'  is  a  sufficient 
description. 

The  requisites  of  TIME,  and  PLACE,  in  pleading, 

(/)  1  Salk.  6.     Lawes'  PI.  58. 

(g)  Com.  Dig.  Pleader,  C.  20.  2  Black.  R.  706.  Cro.  Jac. 
555.  557.  2  Mod.  304.  Lawes'  PI.  58. 

(A)  1  Saund.  74.  (n.  1.)  Com.  Dig.  Pleader,  C.  20.  Co. 
Litt.  303.  a.  Salk.  404. 

(f)  Lill.  Ent.  passim.     2  Chitt.  PI.  1.  2.  3.  4.     141. 


152  GENERAL  RULES  OF  PLEADING. 

CHAP,    having  been  thus  discussed ;   it  is  necessary  to   pro- 
in.       ceed  to  others,  of  a  more  miscellaneous  character  : — 


Miscellanc-  c     i  /•»/•»       T         i  i  i  i    /•  C^NI 

ous rules.  ^  loo.  It  has  already  appeared  (ante,  §  2,)  that 
^vldfn"!  lof  aN  facts,  essential  to  the  right  of  action  or  the  de- 
sufficiJm!  fence,  must,  in  general,  be  expressly  and  substan- 
tively  alleged.  Hence,  stating  the  mere  evidence  of 
a  material  fact  is  not  sufficient  (A:).  The  fact  itself 
must  be  stated  ;  otherwise  the  allegation  will  present 
no  subject  to  which  the  law  can  be  applied.  Besides, 
such  a  mode  of  pleading  would,  if  admissible,  refer 
the  matter  of  fact  in  question  to  the  court,  instead  of 
the  jury.  Thus,  if  in  trover,  the  plaintiff  alleges  a 
property  in  the  goods— the  loss — the  finding — and  a 
demand  and  refusal — but  omits  to  aver  a  conversion; 
the  declaration  is  ill  :  The  demand  and  refusal  being 
only  evidence  of  a  conversion,  which  is  the  gist  of 
the  action (7). 

^167.  Each  party  tacitly  admits  all  such  traver- 
sable  allegations  on  the  opposite  side,  as  he  does  not 
traverse(m).  For  as  each  party  is  allowed  to  deny  in 
some  form — (either  by  a  general,  or  precise  traverse) 
— all  material  facts  alleged  against  him  ;  the  omis- 
sion, by  either  party,  to  traverse  any  such  fact,  al- 
leged by  his  adversary,  is  justly  considered  as  an  ad- 
mission of  it. 

(fc)  9  Co.  9.  b.  Willes,  131.  Cro.  Eliz.  913.  2  Root,  74. 
2  Stra.  793.  Cro.  Jac.  383.  Chitt.  on  Bills,  186-7. 

(1)  1  Roll.  Ab.  131.  Hob.  187.  2  Show.  179.  10  Co.  56. 

b.  57.  a.  3  Burr.  1243.  2  H.  Black.  135-6.  Cowp.  529. 
Contra,  G  Mod.  212. 

(m)  Bac.  Abr.  Pleas,  &c.  II.  4.  Ib.  Introd.  2.  1  Salk.  91. 
1  Wils.  338. 


GENERAL  RULES  OF  PLEADING. 

^   168.     Whatever   has   been   admitted,  on   both    CHAP. 
sides,  in  the  pleadings,  cannot  be  contradicted,  either       in. 

in  the  subsequent  pleadings,  or  even  by  the  verdict.  

For  neither  party  can  retract  what  he  has  before 
conceded  on  the  record  ;  and  the  jury  have  no  au- 
thority to  find  any  other  facts  than  such  as  are  put 
iii  issue(n). 

§>  169.     Each  party's  pleading  is  to  be  taken  most  Construc- 
tion of  any 

strongly  against  himself,  and  most   favorably  to  his  pleading, 

0  ^          J  '  J  most   strong 

adversary(o).  This  rule  is  founded,  not  only  upon  afa^  thc 
the  presumption  that  each  party's  statement  is  the 
most  favorable  to  himself,  of  which  his  case  will 
admit ;  but  also  upon  the  obviously  reasonable  prin- 
ciple, that  it  is  incumbent  on  each  pleader,  in  stat- 
ing the  ground  of  his  action  or  defence,  to  explain 
himself  fully  and  clearly.  Any  ambiguity,  uncertain- 
ty, or  omission  in  the  pleadings,  must  therefore  be 
at  the  peril  of  that  party,  in  whose  allegations  it  oc- 
curs. If,  therefore,  the  defendant  in  trespass  pleads 
a  general  release,  without  stating  the  time  of  its  ex- 
ecution ;  it  shall  be  intended  to  have  been  made  be- 
fore the  trespass  was  committed (p).  Thus  also,  if 
to  debt  on  bond,  payable  on  a  given  day,  the  de- 
fendant pleads  payment  or  tender,  without  alleging 
the  time  ;  the  legal  intendment  must  be,  that  it  was 
made  after  the  day  appointed  for  payment(^). 

(n)  Bac.  Abr.  Pleas,  &c.  Introd.  Ib.  Verdict,  W.  2  Mod. 
6.  Willes,  366.  Lawes,  PI.  48. 

(o)  Co.  Litt.  303.  b.  Dy.  120.  a.  Plowd.  29.  202.  Com. 
Dig.  Pleader,  E.  6. 

(p)  Plowd.  46.  a.     Com.  Dig.  Pleader,  E.  6. 

(q)  Plowd.  104.     Com.  Dig.  Pleader,  E.  6. 


GENERAL  RULES  OF  PLEADING. 

CHAP.        %  170.    Surplusage — by  which   is  meant  matter, 

in.      that  is  altogether  superfluous  and  useless,  does  not, 

in  general,   vitiate    the  pleadings,  even  in  point  of 

Surplusage      f  „  .  . 

of  no  effect,  f  orm  i  1  he  maxim  being  utile  per  inutile  non  vitia- 
tur(r).  In  such  cases,  the  unnecessary  matter  will  be 
rejected  by  the  court,  and  the  pleadings  will  stand 
as  if  it  were  struck  out,  or  had  never  been  inserted. 
§  171.  But  where  a  party  pleads  unnecessary 
matter,  which  shows  that  he  has  no  cause  of  action 

Effect  of  °r  no  legal  defence,  the  matter  thus  pleaded  will  be 
"  ^atal  to  tnat  which  would,  otherwise,  have  been 
good(s).  For  in  this  case,  the  superfluous  matter 
cannot  be  rejected,  as  immaterial;  since  it  shows 
that  the  pleader  has,  according  to  his  own  state- 
ment, no  cause  of  action,  or  no  defence.  Thus,  if 
in  declaring  upon  a  public  statute,  the  plaintiff  so 
counts  upon  it,  as  to  confine  himself  to  its  terms  as 
recited,  (as  by  the  words,  "  contra  formam  statuti 
predicti")  but  misrecites  it,  in  a  material  part ;  the 
declaration  is  ill,  in  substance(^).  For  though  the 
recital  of  a  public  statute  is  unnecessary ;  yet,  it  be- 
ing thus  recited,  and  counted  upon,  the  plaintiff 
must  recover  upon  it,  if  at  all,  as  recited  But,  as 
it  must,  of  necessity,  appear  judicially  to  the  court, 
that  no  such  statute,  as  that  recited,  exists  ;  it  must 
consequently  appear,  in  the  same  manner,  that  the 
declaration  discloses  no  right  of  action. 

(r)  Bac.  Abr.  Pleas,  &c.  I.  4.  Co.  Litt.  303,  b.  2  East,  333. 
4  Co.  42.  Com.  Dig.  Pleader,  C.  28.  29.  E.  12.  Hob.  208. 

(*)  lid. 

(t)  Com.  Dig.  Pleader,  C.  29.  Ib.  Action  upon  stat.  I.  1  Ld. 
Ray.  382.  Plowd.  84.  b.  Cro.  Eliz.  245.  Yelv.  127.  a.  nole.(l.) 


GENERAL  RULES  OF  PLEADING.  J55 

^  172.  So  also,  superfluous  matter,  when  it  con-    CHAP. 
tradicts,  or  is  inconsistent  with  facts  before  alleged       in. 

on    the  same  side,  vitiates  the   pleading(t<).      This  

fault  falls  properly  under  the  denomination  of  repug-  Cy'pXctn~ 
nancy;  which,  as  the  term  imports,  is  some  contra-  ° 
riety  or  inconsistency  between  different  allegations  of 
the  same  party(27). 

^  173.  Repugnancy  is  a  fault  in  all  pleading(t?) ; 
and  this,  upon  the  obvious  principle,  that  inconsistent 
allegations,  in  the  pleading  of  either  party,  destroy 
or  neutralize  each  other.  The  rule,  however,  is  to 
be  understood  with  this  difference  :  If  the  pleading 
is  repugnant,  in  a  material  point ;  it  is  ill  in  sub- 
stance, or  on  general  demurrer :  But  repugnancy,  in 
an  immaterial  point,  is. a  fault  in  form  only(if)  ;  and 
therefore  no  advantage  can  be  taken  of  it,  except  by 
special  demurrer.  Thus,  if  in  trover,  the  declara- 
tion by  mistake  alleges  the  conversion  to  have  taken 
place  on  a  day  prior  to  that,  on  which  the  loss  of 
the  goods  is  laid;  or  if  in  ejectment,  the  ouster  is 
laid  on  a  day  prior  to  the  alleged  date  of  the  lease ; 
the  repugnancy,  in  either  case,  would,  at  common 
law,  (before  the  statute  of  jeofails),  have  been  fatal, 

(a)  Co.  Litt.  303.  b.  Com.  Dig.  Pleader,  E.  12.  Lawes'  PI. 
63-4.  170.  Gilb.  H.  C.  P.  132. 

(«)  1  Saund.  169.  2  Ib.  291.  1  Stra.  232.  1  T.  R.  70.  71. 
657. 

(w)   lid." 

(27)  Such  superfluous  matter  cannot  be  considered  as  mere 
surplusage ;  for,  by  surplusage,  properly  so  called,  is  generally 
meant  such  superfluous  matter,  as  may  be  rejected,  or  entirely 
disregarded. 


GENERAL  RULE  S  OF  PLEADING. 

CHAP.     on  general  demurrer  :     But  the  day  being  now  con- 
iii.       sidered  but  matter  of  form ;   the  repugnancy  is  in 
both  cases  aided,  except  on  special  demurrer(V) . 

Ante,  §  64. 

AII  things         £  174.   it  is  laid  down  as  an  established  rule,  that 

are  to  be  •> 

pleaded  ac-  aj]  things  must  be   pleaded  according  to  their  legal 

cording  to 

effect egal  effect(y)  i  i'  e*  must  be  stated  or  described,  as  they 
operate  or  take  effect,  in  law  ;  although  such  state- 
ment or  description  should  vary,  literally  or  in  form, 
from  the  matter  of  fact  to  be  shown  in  evidence. 
This  rule  relates  chiefly  to  cases,  in  which  a  written 
instrument,  drawn  in  a  form  in  which  it  cannot,  by 
the  rules  of  law,  take  effect,  may  nevertheless 
operate  as  an  instrument  of  a  different  kind:  In 
which  case  ut  res  magis  valeat  quam  pereat,  the  law 
will  so  construe  it,  if  possible,  as  to  give  it  effect,  as 
an  instrument  of  a  different  kind  from  that,  which  in 
its  language  it  purports  to  be(z).  For  it  is  an  esta- 
blished rule,  that  a  deed  shall  never  fail  of  ef- 
fect, if  by  construction  it  can  be  made  effectu- 
al^). 

^  175.  If  then  a  deed,  in  the  form  of  a  contract 
or  conveyance,  of  one  particular  species,  cannot 

(x)  Com.  Dig.  Pleader,  C.  19.  3  M.  5.  Yelv.  94.  3  Black. 
Com.  394.  Carth.  389.  Com.  R.  12.  1  Saund.  116-  1  Lev. 
194.  Andr.  250.  Stra.  232.  1095. 

(y]  Bac.  Abr.  Pleas,  &c.  I.  7.  Co.  Litt.  193.  b.  ^Com.  Dig. 
Pleader,  C.  37.  2  Saund.  96-7.  Cowp.  600.  Cro.*  Eliz.  352. 
Doug.  667.  2  Salk.  574.  1  Ld.  Ray.  400.  Lawes'  PI.  62.  1 
T.  R.  446. 

(«)  Shep.  Touch.  82-3.  Cro.  Eliz.  352.  2  Salk.  574.  2 
Saund.  96.  T.  Ray.  187.  1  T.  R.  446.  4  Mod.  150. 

(a)  Shep.  Touch.  82-3.     Hob.  277.     2  Saund.  96.  n.  1. 


GENERAL  RULES  OF  PLEADING. 


from   the  nature  of  the  thing,  operate  except  as  a    CHAP. 
contract,  or  conveyance,  of  a  different  kind  ;  it  must,       in. 
according  to  the  above  rule,  be  pleaded,  as  a  deed  of  - 
the  latter  kind.     Thus,  if  a  deed  purporting  to  give,  accorcUnf  to 
grant,  bargain,  sell,  and  release,  cannot,   in  the  na-  ibct.eg 
ture  of  the  case,  take  effect  in  law,  except  as  a  re- 
lease ;  it  must,  according  to  the  above  rule,  be  pleaded 
as  a  release  :   Or  if  it   cannot  operate,   except  as  a 
deed  of  bargain  and  sale  ;  it  must  be  pleaded  as  such(b). 

^  1  76.  (And  in  all  such  cases,  a  mistake  in  stat- 
ing the  legal  effect,  if  it  appears  upon  the  face  of 
the  pleadings,  is  fatal  on  demurrer(c)  ;  and  if  it  * 
does  not  thus  appear,  it  is  fatal  in  evidence(d).  For 
the  court  cannot,  in  either  case,  give  judgment  for 
the  pleader,  in  opposition  to  his  own  averments.)  If, 
therefore,  a  deed  of  feoffment,  with  livery  of  seisin, 
is  made  by  a  joint-tenant  to  his  co-tenant  ;  it  must, 
according  to  this  rule,  be  pleaded  not  as  a  feoffment, 
but  as  a  release(e).  For  a  feoffment  cannot  take 
effect,  as  between  joint-tenants  ;  since  each  of  them 
is  already  seised  as  well  per  tout,  as  per  mie  —  as 
well  of  the  whole,  as  of  the  half.  So  also,  if  a  tenant 
for  life  makes  a  conveyance,  in  form  of  a  grant,  to 
the  reversioner  ;  it  is,  by  the  same  rule,  to  be  plead- 

ed Cro.  E-liz.  166.     1  Vent.   109.     2    Saund.   97.    b.  (n.  2.) 
Co.  Litt.  301.  b.     Carth.  308. 

(c)  2  Vent.  151.     3  Lev.  291.     2   Saund.   97.  c.    (n.  2.)     4 
Mod.  149.      Carth.  253. 

(d)  1  H.  Black.  313.  569.     3  T.  R.  182.  481.     2  Stra.  934-5. 

(e)  Com.   Dig.   Pleader,   C.    37.     4   Mod.    150.     Bac.    Abr. 
Pleas,  &c.  I.  7.     Co.  Litt.  193.  b.  200.  b.     2  Saund.  96. 

21 


158  GENERAL  RULES  OF  PLEADING. 

CHAP.    ed  as  a  surrender (f) :     The  latter  being   the  only 

HI.       form  of  conveyance,  by  which  the  interest  of  the 

particular  tenant  can,  by  the   common  law,  pass  to 

Pleading          ,1 

according  to  the  reversioner. 


the  legal  ef- 
fect. 


^  177.  Under  the  same  rule,  if  one  covenants  to 
stand  seised  to  the  use  of  his  child,  or  near  relative, 
for  a  pecuniary  or  valuable  consideration ;  the  con- 
veyance must  be  pleaded,  as  a  deed  of  bargain  and 
sale(g).  For  a  covenant  to  stand  seised  is  not  sup- 
ported by  a  valuable  consideration ;  but  by  that  only 
of  natural  affection  between  kindred ',  or  that  of  mar- 
riage :  Whereas  a  conveyance  by  bargain  and  sale 
can  be  supported,  by  no  other  than  a  valuable  consid- 
eration^). Hence,  on  the  other  hand,  a  deed  in  the 
form  of  a  grant,  or  of  a  bargain  and  sale,  made  to  a 
near  relative,  and  expressed  to  be  in  consideration  of 
natural  affection,  must,  on  the  same  principle,  be 
pleaded  as  a  covenant  to  stand  seised(i)  :  Because 
such  a  consideration  will  support  no  other  conveyance, 
than  a  covenant  to  stand  seised. 

§  178.  And  a  single  deed,  made  by  two  persons, 
having  distinct  interests  in  the  subject  of  it,  may 
enure  to  two  different  intents  or  effects.  Thus  if  a 
tenant  for  life  or  years,  and  the  reversioner,  join  in 
a  deed  of  conveyance,  in  the  form  of  a  deed  of  bar- 
gain and  sale;  it  will,  as  against  the  reversioner, 

(/)  Bac.  Abr.  Pleas,  &c.  I.  7.  -4  Mod.  151.  Comb.  190. 
(g)  Carth.  308.  3  Lev.  291.  4  Mod.  149.  2  Vent.  149. 
(h)  2  Black.  Com.  342. 

(i)  2  Wils.  22.  75.  Willes,  673.  682.  4  Mass.  R.  135.   2  Saund. 
97.  a.  (n.  1.)     Bac.  Abr.  Pleas,  &c.  I.  7.  2  Vent.  149.  260.  266. 


GENERAL  RULES  OF  PLEADING.  J59 

take  effect  as  a  bargain  and  sale,  and  quoad  the  ten-    CHAP. 
ant,  as  a  surrender.     In  such  a  case  therefore,  the       in. 

conveyance  should,   by  the  above    rule,  be  pleaded  

according  to  its  twofold  legal  effect — viz.  as  a  bar-  according 
gain  and  sale,  on  the  part  of  the  reversioner ;  and  as  effect,  °g 
a  surrender,  on  that  of  the  tenant (7c). 

^  179.  Within  the  same  general  rule,  a  covenant 
by  a  creditor,  with  his  debtor,  never  to  sue  for  the 
debt,  should  be  pleaded,  not  as  a  covenant,  but  as  an 
acquittance  (I).  For,  as  a  covenant,  it  cannot  bar  an 
action  for  the  recovery  of  the  debt ;  although  it 
would  entitle  the  debtor  to  damages,  in  a  cross  ac- 
tion of  covenant  broken :  Since  a  covenant  is  no  bar 
to  an  action  brought  upon  a  different  contract,  unless 
the  former  contains  words  of  defeasance(m). 

^  180.  So  also,  when  a  bill  of  exchange  is  pay- 
able, in  its  terms,  to  the  order  of  a  factitious  payee, 
the  holder,  in  declaring  upon  it,  must,  by  the  same 
rule,  describe  it  as  a  bill  payable  to  bearer(n)  :  This 
being  the  only  form  in  which  it  can  take  effect. 

§  181.  But  the  rule  itself,  (ante,  %  174),  of 
which  the  preceding  examples  are  given,  as  illustra- 
tions— though  generally  laid  down  as  being  im- 
perative— ought  rather  to  be  expressed,  as  permis- 

(/«•)   1  Ld.  Ray.  400.     Lutw.  569. 

(I)  Cro.  Eliz.  352.  1  Show.  46.  1  Roll.  Ab.  939.  1  T.  R. 
446.  8  Ib.  170-1.  Willes,  109.  note.  17  Mass.  R.  581. 

(m)   1  Lev.  152.     6  T.  R.  737.     8  Ib.  483.     Esp.  Dig.  306. 

(»)  1  H.  Black.  313.  569.  2  Ib.  194.  288.  3  T.  R.  178.  282. 
335.  481. 


160  GENERAL  RULES  OF  PLEADING. 

CHAP.    s^ve'     And  the  more  proper  form  of  stating  the  rule, 
in.      would  be,  that  where  the  form  and  legal  effect  of 

an  instrument  differ,  it  may  be  pleaded,  according  to 

according  its  legal  effect.  For,  though  this  latter  is  con- 
eflect.  fessedly  the  more  scientific  and  approved  mode  of 
pleading,  in  all  such  cases  ;  yet  the  pleader  may,  at 
his  option — instead  of  stating  the  legal  effect — re- 
cite the  instrument,  in  hcec  verba,  and  refer  its  legal 
operation  to  the  court(o).  For  if,  when  the  form 
of  the  deed  differs  from  its  legal  effect,  and  it  is 
pleaded  according  to  that  effect,  the  court  can  per- 
ceive from  the  instrument,  that  it  supports  the  state- 
ment, in  evidence ;  there  appears  to  be  no  sufficient 
reason,  why — when  the  deed  is  recited,  in  hcec  ver- 
ba — its  legal  effect  may  not  be  recognised  by  the 
court,  upon  the  face  of  the  pleadings. 

§  182.  If  however  the  pleader  undertakes  to 
state  the  legal  effect,  and  misstates  it ;  the  mistake 
Ante,B.  176.  w^  ^e  fatal(p)  '  As  if  a  deed,  which  can  operate 
in  law  only  as  a  release,  or  surrender,  is  pleaded  as  a 
grant,  or  bargain  and  sale,  or  vice  versa.  For  in  such 
a  case,  the  allegation,  professing  to  state  the  legal 
effect,  is  essentially  untrue. 

&  183.    There  is  an  important  distinction  to  be 

Immaterial  •>  m  \ 

andim-       observed,  between  immaterial  and  impertinent  aver- 

pertment 

averments.    ments  i  viz.  that  the  former  must,  in  many  cases,  be 

(o)  1  Ld.  Ray.  400.  403.  404.  Lutw.  569.  2  H.  Black.  11. 
3  Lev.  292^  8  Johns.  R.  374. 

(p)  3  Lev.  291.  2  Saund.  97.  c.  (n.  2.)  4  Mod.  149.  Carth. 
253.  1  H.  Black.  313.  516.  3  T.  R.  182.  474  481.  2  Stra. 
934-5.  3  B,  &  A.  66. 


GENERAL  RULES  OF  PLEADING. 


precisely   proved  ;    whereas    the  latter    require    no  CHAP. 
proof  in  any  case(^).  in. 


§  1 84.  For  the   purpose    of  explaining   this   dis-  impertinent 

...  -,  -11  •  j-          ^  averments. 

Unction,  it  must  be  premised,  that  an  impertinent 
averment  is  a  statement  of  matter  altogether  foreign 
to  the  merits  of  the  cause,  and  which  might,  there- 
fore, be  entirely  struck  out,  without  injury  to  the 
pleading(r).  Of  such  matter,  no  proof  can  ever  be 
required.  An  immaterial  averment,  (as  contradis- 
tinguished from  an  impertinent  one),  has  been  vari- 
ously described  ;  but  not  always  with  sufficient  pre- 
cision. In  the  case  of  Bristow  v.  Wright,  (Doug. 
665),  Lord  Mansfield,  in  commenting  upon  the  dis- 
tinction between  these  two  species  of  averments, 
observes,  '  The  distinction  is  between  that,  which 
may  be  rejected  as  surplusage,  and  which  might  have 
been  struck  out  on  motion,  and  what  cannot.  Where 
the  declaration  contains  impertinent  matter,  foreign 
to  the  cause,  and  which  the  master,  on  a  reference 
to  him,  would  strike  out,  that  will  be  rejected  by 
the  court,  and  need  not  be  proved.  But  if  the  very 
ground  of  the  action  is  misstated ;  as  where  you 
undertake  to  recite  that  part  of  a  deed  on  which  the 
action  is  founded,  and  it  is  misrecited ;  that  will  be 
fatal.' 

^  185.  This  language,  though  sufficiently  de- 
scriptive of  an  impertinent  averment,  affords  rather  a 

(g)  Doug.  667.  2  Black.  Rep.  1104.  3  T.  R.  643.  5  Ib.  496. 
2  East,  446.  451.  497.  3  Bos.  &  P.  456.  461.  2  McNall.  Ev.  501. 
513. 

(r)  Doug.  667.     2  Black.  R'ep.  1104.     3  T.  R.  644—5. 


162 


CHAP. 
III. 


Immaterial 
averments. 


When 
necessary 
to  be 
proved. 


GENERAL  RULES  OF  PLEADING. 

particular  example,  than  a  general  definition  or  de- 
scription of  an  immaterial  one.  The  following  is 
therefore  submitted,  as  a  substantially  correct  de- 
scription of  the  latter  : — 

An  immaterial  averment  is  one,  alleging,  with 
needless  particularity  or  unnecessary  circumstances, 
what  is  material  and  necessary,  and  which  might 
properly  have  been  stated  more  generally,  and  with- 
out such  circumstances  or  particulars :  Or  in  other 
words,  it  is  a  statement  of  unnecessary  particulars,  in 
connexion  ivith,  and  as  descriptive  of,  what  is  material. 

§  186.  Immaterial  averments,  and  the  necessity 
of  strictly  proving  them,  may  be  illustrated  by  the 
case  before  mentioned,  of  Bristow  v.  Wright  (Doug. 
665).  This  was  an  action,  brought  on  the  statute 
8  Ann.  c.  14.  ^  1.  by  a  landlord  against  a  sheriff,  for 
taking  in  execution,  and  removing  from  the  demised 
premises,  the  goods  of  the  tenant,  without  leaving 
effects  sufficient  to  satisfy  a  year's  rent.  The  de- 
claration stated  the  demise,  which  it  described  as 
reserving  a  certain  annual  rent,  payable  '  by  four 
even  and  equal  quarterly  payments?  &c.  On  the  trial, 
a  parol  demise  was  proved  ;  but  it  appeared  that 
there  was  no  stipulation  with  regard  to  the  time 
or  times  of  paying  the  rent ;  and  for  this  cause, 
it  was  resolved  by  the  court  of  King's  Bench,  that 
the  plaintiff  could  not  recover.  For  though  it  was 
confessedly  unnecessary  to  state  the  time  or  times 
of  payment,  in  the  declaration — in  other  words, 
though  this  part  of  the  statement  was  immaterial ; 


GENERAL  RULES  OF  PLEADING. 

yet,  as  it  was  indispensably  necessary  to  allege  a    CHAP. 
reservation  of  rent :    (so   that   the  entire  statement      in. 
of  the  reservation   could  not   be  struck  out,  without 
destroying  the  declaration)  ;    and  as  the  appointment 
of  certain  particular  times  of  payment  was  stated  as 
a   constituent  part   of  the    contract,    which  was   in 
its  nature  entire  ;    a  failure  to  prove  such  an  appoint- 
ment, was  a  failure  to  prove  the  contract  as  stated, 
an  consequently  a  variance.     The   contract   proved 
was  not  the  contract  alleged  in  the  declaration. 

^  187.  The  same  rule,  in  regard  to  immaterial 
averments,  was  recognized  in  the  case  of  Savage,  q. 
t.  v.  Smith  (2  Black.  Rep.  1101.  1104).  That  was 
an  action  of  debt  against  a  bailiff,  for  extorting  ille- 
gal fees,  on  a  writ  of  fieri  facias.  The  declaration 
described  the  fi.  fa.,  as  having  been  issued,  on  a 
judgment  recovered  in  B.  R.  at  a  specified  term,  for 
£51,  12,  0,  debt,  and  £6,  10,  0,  costs.  But  the 
plaintiff  having  failed,  on  the  trial,  to  prove  such  a 
judgment,  the  court  held,  that  admitting  it  to  have 
been  unnecessary  for  the  plaintiff  to  state  any  judg- 
ment, (76.  1104.  and  vid.  5  T.  R.  498),  that  is  to 
say,  admitting  the  statement,  in  that  particular,  to 
have  been  immaterial;  yet  being  made,  as  descrip- 
tive of  the  foundation  of  theji.fa. ;  it  was  necessary 
to  be  proved  as  made (5).  The  omission  of  such 
proof  was  indeed  of  the  nature  of  a  variance. 

(•)  Ace.  12  Mod.  127.     3  T.  R.  646.     5  Ib.  497.     3  Bos.  & 
P.  456.  461.     5  Price,  540.     2  B.  &  A.  767.     1   M.  &  S.  204. 


164  GENERAL  RULES  OF  PLEADING. 

CHAP.        §  188.     The  rule  that  immaterial  averments  must 

in.       be  strictly  proved,  is  however  by  no  means  universal, 

though  it  appears  to  have  been  formerly  so  understood : 

When  not        „,  •       •    j         /•     i  i  -r        i 

necessary      1  he   principle  of  the  rule  manifestly  embraces,  (it  is 

to  be  proved.  -        i^  r 

conceived),  no  other  averments  of  that  class,  than 
those  of  which  a  variance  may  be  predicated.  And 
the  rule  itself,  it  seems,  is  now  to  be  understood  as 
limited  by  that  principle. 

^  189.  The  rule,  then,  as  limited  by  the  more 
modern  authorities,  appears  to  be,  that  no  immaterial 
averment  requires  precise  proof,  unless  the  failure  of 
such  proof  would  occasion  a  variance  between  the . 
pleading  and  the  proof:  Or  (in  different  language), 
strict  proof  of  such  an  averment  is  not,  at  this  day, 
necessary,  unless  the  subject  of  the  averment  is  a 
record — a  written  instrument — or,  (as  I  conceive) 
an  express  contract(t)  :  Inasmuch  as  these  are  in 
strictness  the  only  subjects  of  variance,  (properly  so 
called),  when  the  mistake  in  the  pleading  is  in  a 
point  not  in  itself  material  (28).  It  is  here  observa- 

(f)  3  T.  R.  645.  5  Ib.  496.  2  East,  452.  502.  4  Ib.  400. 
5  Esp.  Rep.  8. 

(28)  The  editor  of  the  second  English  edition  of  Douglas's  Re- 
ports observes,  in  a  note  annexed  to  the  case  of  Bristow  v.  Wright, 
that  the  rule  requiring  immaterial  averments  to  be  strictly  proved, 
is  now  confined  to  the  cases  of  '  records  and  written  contracts.' 
This  assertion  appears  to  have  been  founded  upon  a  casual  re- 
mark of  Mr.  J.  Butter,  (3  T.  R.  646,)  that  '  perhaps  the  rule 
will  be  found  to  extend  to  all  cases  of  records  and  written  con- 
tracts.' (Vid.  also  3  Cranch,  209.)  But  that  learned  judge 
did  not  profess,  in  this  occasional  remark,  formally  to  define  the 


GENERAL  RULES  OF  PLEADING. 

ble,  that  the  decisions  in  the  two  cases  before  stated,    CHAP. 
of  Bristow  v.  Wright  and  Savage  v.  Smith,  both  come       m. 
within  the  range  of  the  rule,  as  thus  restricted.    For 
the   immaterial  averment  in  question,  in  the  former 
case,  was  descriptive  of  an  express  contract,  as  that 
in  the  latter  was  of  a  record. 

^  190.  But  where,  in  an  action  on  a  policy  of  in- 
surance on  a  ship,  the  declaration  contained  an  aver- 
ment, that  she  sailed  upon  her  voyage,  after  the  mak- 
ing of  the  policy  ;  whereas  she  actually  sailed  before 
it  was  made — it  was  held  by  the  court  of  B.  R.  un- 
necessary for  the  plaintiff  to  prove  the  averment, 
as  made(i<)  :  Because  it  was  not  a  statement  of  any 
part  of  the  contract,  but  of  a  collateral  fact,  which 
(as  there  was  no  warranty,  or  representation,  in  re- 
gard to  the  time  of  sailing),  could  not  affect  the  right 
of  action. 

(M)  5  T.  R.  496. 

precise  extent  of  the  rule.  Indeed,  he  had  before,  and  in  imme- 
diate connexion  with  the  observation  just  cited,  extended  it  to 
'  contracts',  generally  ;  as  Lord  Kenyan  had  done,  in  the  same 
case.  Nor,  on  principle,  does  there  appear  any  reason  for  con- 
fining the  rule  to  the  limit  expressed  in  the  note  to  Bristow  v. 
Wright :  since  a  variance  may  occur,  as  well  in  the  statement  of 
a  parol  contract,  as  in  that  of  a  written  instrument  or  record.  But 
what  appears  decisive  against  such  a  restriction  of  the  rule  is,  that 
the  averment,  which  was  held  fatal  to  the  action,  in  Bristow  v. 
Wright,  (the  leading  authority  in  support  of  the  Editor's  rule), 
was  an  averment,  made  instating  a  parol  lease.  Vid.  Yelv.  195. 
b.  (n.  1.) 

22 


GENERAL  RULES  OF  PLEADING. 

CHAP.  §191.  Thus  also,  where  in  an  action  of  debt, 
in.  brought  on  the  statute  11  Geo.  2,  c.  19,  §  3,  to  re- 
cover  double  the  value  of  goods,  which  wrere  remov- 
ed by  the  defendants,  to  prevent  a  distress  for. rent, 
the  declaration  averred  that  such  a  certain  sum  (£57), 
was  due  as  rent  in  arrear — the  court  of  B.  R.  resolv- 
ed, that  the  plaintiff  was  not  bound  to  prove 
that  particular  sum  as  the  amount  due(#).  For 
the  averment  of  a  particular  sum,  as  the  amount  in 
arrear,  being  immaterial,  and  not  descriptive  of  the 
terms  of  the  contract,  (as  a  statement  of  the  rent  re- 
served would  have  been),  was  not  within  the 
rule  requiring  precise  proof  of  immaterial  aver- 
ments^). 

Defects,  on        §  192.  If  one  of  the  parties  expressly  avers,  or 
aided  by  the  confesses,  a  material  fact,  before  omitted  on  the  other 
pleading.      side  ;    the  omission  is  cured.     For  the  defect,  in  the 
pleading  of  the  one  party,   is  thus  supplied  by  the 
other ;    and  it  may  thus  be  made  to  appear,   from 
the  pleadings  on  both  sides,  taken  together,  that   he, 
on  whose  part    the  omission  occurs,  is  entitled  to 
judgment ;    although  his  own  pleading,   taken  by  it- 
self,  be    insufficient^).      Thus   where    in  trespass, 
the  plaintiff  complained  of  the  defendant  for  taking 
a  certain  iron  hook,  without  alleging  possession   in 
himself  (which  in  that  action  is  material),  the  de- 

(«)  3  T.  R.  643. 

(to)  Vid.  3  Cianch,  193.  208-9. 

(x)  Esp.  Dig.  588.  Com.  Dig.  Pleader,  C.  85.  1  Sid.  184. 
Cro.  Car.  288.  Aleyn,  7.  6  Binn.  24.  9  Pick.  62.  Con/. 
Gouldsb.  187.  3  Caines'  R.  73. 


GENERAL  RULES  OF  PLEADING. 


fendant's  plea,  in  which  he  confessed  and  justified    CHAP. 
the  taking  of  the  hook  from  the  plaintiff's  hand,  was       m. 
held  to  aid  the  declaration  ;  inasmuch  as  it  express- 
ly  acknowledged  the  plaintiff's  possession(y). 


§  193.  In  general,  it  is  not  necessary  for  either 
party  to  allege  more  than  will  constitute,  prima  facie,  ^nse&cab 
a  sufficient  cause   of  action  or  defence  (2)  (29).     It  sufficient- 
is  therefore  in  general    unnecessary  for  a  party  to 
deny  or  avoid,  by  anticipation,  all  or  any  of  the  pos- 
sible   facts,  which  might  furnish  sufficient  answers 
in  law  to  his  own  allegations.     For  this  would  not 
only  lead  to    extravagant   prolixity,   but  would    be 
found  impracticable. 

^  194.  Thus  also,  in  declaring  on  a  contract,  it 
is  unnecessary  to  aver  that  the  defendant,  at  the 
time  of  making  it,  was  of  full  age  —  or  was  not  a 
feme  covert  —  or,  that  the  contract  was  not  obtain- 
ed by  fraud,rjp  duress  —  or,  that  it  was  not  founded 
upon  an  usurious,  or  other  illegal  consideration  —  or 
to  anticipate  any  other  special  matter  of  defence(a). 
For  if  any  such  matter  of  defence  exists,  it  is  for  the 
defendant  to  show  it. 

(j/)   1  Sid.  184. 

(*)   2  Wils.  100.     1    Saund.  299.     1  Ld.  Ray.   400.     Doug. 
159.     1  Vent.  217. 

(a)  Plowd.  376.   564.      1  Ve'nt.  217.      1  Saund.  298-9. 

(29)  An  exception  to  this  rule  has  been  already  mentioned,  as 
obtaining  in  two  particular   instances  :   viz.  in   pleading  estoppels, 
and  generally,  in  dilatory  pleas,  (  Vid.  Dilatory  Pleas,  post.  ch.   Ante,  ch.  3., 
V.)     Co  Litt.  352.   b.  303.  a.     2  H.  Black.  530. 


GENERAL  RULES  OF  PLEADING. 

CHAP.  Yet,  in  declaring  on  a  contract,  the  plaintiff  must 
in.  aver  that  it  has  not  been  performed  ;  though  per- 
formance  is  special  matter  of  defence,  on  the  defend- 
ant's part.  But  this  allegation,  in  the  declaration, 
is  necessary,  not  for  the  purpose  of  excluding,  by  an- 
ticipation, the  defence  of  performance  ;  but  for  that 
of  showing  aprimafacie  right  of  action.  For  with- 
out an  allegation  of  non-performance,  no  complete 
right  of  action  can,  in  such  a  case,  appear  upon  the 
face  of  the  declaration. 


New  matter,          ^     jg^      Ajj    fa^    aljege(J     m    piling,    which    gO 

iii  avoidance  of  what  is  before  pleaded,  on  the  oppo- 
site side,  are  called  new  matter.  In  other  words, 
every  allegation  made  in  the  pleadings,  subsequent 
to  the  declaration,  and  which  does  not  go  in  denial 
of  what  is  before  alleged  on  the  other  side,  is  an 
allegation  of  new  matter. 

cKwi&a       %  196.  And  it  is  a  general  rule  of  the  common 
rerification.   |aw^  t|iat  ajj    new  matter  must    be  followed    by  a 

verification,  or,  as  it  is  frequently  termed,  an  aver- 
ment(b)  :  A  verification  being  an  averment,  or  affir- 
mation, that  the  pleader  is  prepared  to  verify,  or 
prove,  the  matter  alleged  by  him  ;  and  is  expressed 
in  the  following  form  :  '  And  this  he  is  ready  to 
verify  '(c). 


.  The   necessity  of  concluding  new  matter 
with  a  verification,  arises  from  the  right,  which  each 

(6)   3  Black.  Com.  309.     Lavves'  PI.  114.   145.  223.   Cowp. 
575.     1  Saund.  102.   103.     Doug.  58. 
(c)   3  Black.  Com.  309. 


GENERAL  RULES  OF  PLEADING. 


party  has,  (until  a  proper  issue,  closing  the  plead-    CHAP. 
ings,  is  tendered,)  to  answer  the  allegations  on  the       m. 
other  side,  by  new  matter  of  his  own,  or  otherwise, 


as  the  exigency  of  his  case  may  require.  And  to  post,  ch.  vi. 
secure  this  right  to  each  party,  the  pleadings,  on 
both  sides,  must  be  kept  open  to  such  answer,  until 
they  are  closed  by  an  issue,  in  the  manner  above- 
mentioned.  And  a  verification,  is,  in  general,  the 
conventional  and  only  mode  known  to  the  law,  of 
keeping  them  thus  open. 

^  198.  There  is  one  instance,  however,  in  which 
new  matter  need  not  conclude  with  a  verification, 
and  in  which  the  pleader  may  pray  judgment,  with- 
out it  :  viz.  Where  the  matter  pleaded  is  merely 
negative  (d).  For  a  negative  in  general  requires  no 
proof;  and  it  would  therefore  be  impertinent  or  nu- 
gatory for  him,  who  pleads  negative  matter,  to  de- 
clare his  readiness  to  prove  it.  To  an  action  on  a 
negative  covenant,  therefore,  the  defendant  may 
plead  merely  that  he  has  not  done  what  he  cove- 
nanted against,  and  pray  judgment,  without  a  veri- 
fication. 

And  by  a  positive,  and  anomalous,  provision,  in 
the  English  statute  5  Geo.  2,  a  bankrupt  may  plead 
his  bankruptcy  in  bar,  and  conclude,  (though  the 
matter  pleaded  is  new,  and  merely  affirmative),  to 
the  country  (e.) 

(d)  Willes,  5.     Lawes'  PI.  145. 

(e)  Lawes'  PI.  145.  227. 


CHAPTER  IV. 


CHAP. 
IV. 

Declara- 
tion, requi- 
sites of. 


Difference 
between 
declaration 
and  count. 


OF    THE    DECLARATION    OR    COUNT. 

SECTION  1.  THE  declaration,  or  count,  as  has 
been  before  stated,  (Chap.  II.),  is  an  amplification 
or  exposition  of  the  original  writ,  with  the  addition 
of  all  necessary  circumstances,  not  expressed  in  the 
wnt(f) :  In  other  words,  it  is  a  detailed  statement 
of  the  complaint,  or  cause  of  action,  which,  in  the 
writ,  is  presented  in  a  more  general  form. 

§  2.  The  terms  '  declaration'  and  '  count'  are 
frequently  used,  especially  in  the  older  books,  as 
convertible  terms  ;  but  practice  has  introduced  the 
following  distinction :  Where  the  plaintiff's  com- 
plaint embraces  only  a  single  cause  of  action,  and  he 
makes  only  one  statement  of  it,  that  statement  is 
called,  indifferently,  a  '  declaration',  or  a  '  count' ; 
though  the  former  term  is  the  more  usual,  at  the 
present  day.  But  where  the  suit  embraces  two  or 
more  causes  of  action,  (each  of  which  requires,  of 
course,  a  distinct  statement)  ;  or  when  the  plaintiff 
makes  two  or  more  different  statements  of  one  and 


(/)  Co.  Litt.  17.  a.  303.  b.    3  Black.  Com.  293.     Coin.  Dig. 
Pleader,  C.  7.     Bac.  Abr.  Pleas,  &c.  B.  1. 


OF  THE  DECLARATION. 


the  same  cause  of  action;    each  several  statement  is    CHAP. 
called  a  count,  and  all  of  them,  collectively  taken,       iv. 
constitute  the  declaration. 


§  3.  In  all  cases,  however,  in  which  there  are  two 
or  more  counts  —  whether  there  is  actually  but  one 
cause  of  action,  or  several  —  each  count  purports, 
upon  the  face  of  it,  to  disclose  a  distinct  right  of  ac- 
tion, unconnected  with  that  stated  in  any  of  the  oth- 
er counts  :  So  that,  upon  the  face  of  the  declaration, 
there  appear  to  be  as  many  different  causes  of  action, 
as  there  are  counts  inserted.  And  therefore,  whether 
a  plaintiff,  whose  declaration  contains  more  than  one 
count,  claims  a  recovery  upon  one  right  of  action 
only,  or  upon  several,  cannot  appear,  except  in  evi- 
dence. Practically,  however,  the  defendant  can  sel- 
dom be  left  in  doubt  on  this  point. 

^  4.    One  object  proposed,  in    inserting   two  or  Several 

i       i  •  i  i  .  counts. 

more  counts  in  one  declaration,  when  there  is  in  use  of. 
fact  but  one  cause  of  action,  is,  in  some  cases,  to 
guard  against  the  danger  of  an  insufficient  statement 
of  the  cause,  where  a  doubt  exists  as  to  the  legal 
sufficiency  of  one  or  another  of  two  or  more  different 
modes  of  declaring.  But  the  more  usual  end  pro- 
posed, in  inserting  more  than  one  count,  in  such  a 
case,  is  to  accommodate  the  statement  of  the  cause, 
as  far  as  may  be,  to  the  possible  state  of  the  proof 
to  be  exhibited  on  the  trial  :  or  to  guard,  if  possi- 
ble, against  the  hazard  of  the  proof's  varying  mate- 
rially from  the  statement  of  the  cause  of  action  : 
So  that  if  one  or  more  of  the  several  counts  should 


J>7<2  OF  THE  DECLARATION. 

CHAP.    not  k°  adapted  to  the  evidence,  some  other  of  them 
iv.       may  be  so(g'). 

§  5.  The  plaintiff  has,  in  every  case,  a  right  to 
insert,  in  his  declaration,  as  many  counts,  (each  one 
being  in  itself  single),  as  he  pleases(/i)  ;  and  in  ac- 
tions on  the  case  (especially  in  assumpsit),  it  is  the 
usual  practice  to  insert,  though  often  unnecessarily, 
two  or  more(z').  But  where  counts,  clearly  superflu- 
ous, are  inserted,  they  may,  in  the  English  practice, 
be  struck  out  by  the  order  of  the  court,  and  the  plain- 
tiff be  compelled  to  pay  the  costs  (A:). 

§  6.  And  if  any  one  of  several  counts  in  a  declara- 
tion be  proved,  (although  the  proof  of  all  the  others 
should  fail)  ;  the  plaintiff  must  recover  upon  it,  un- 
less it  be  radically  insufficient  in  law(/).  For  by 
maintaining  one  good  count,  he  establishes  a  complete 
right  of  recovery.  And  for  the  same  reason,  if  on 
demurrer  to  the  whole  declaration,  any  one  of  the 
counts  is  adjudged  sufficient  in  law  ;  the  plaintiff  will 
be  entitled  to  judgment  on  that  count — though  all  the 
others  be  defective. 

what  the          $,  7.    The    declaration,    being    the    statement   of 

declaration 

must  allege,  those  facts  on  which  the  plaintiff  founds  his  right  of 
recovery,  must  of  course  allege  all  that  is  essential 

(g-)  3  Black.  Com.  295. 
(fc)  Lawes'  PI.  73. 

(i)  3  Black.  Com.  295.     Lawes'  PI.  73. 
(k)  Cas.  Temp.  Hardw.  129.     Lawes'  PI.  61.  73. 
(/)  Com.  Dig.  Pleader,  Q.  3.     3  Black.  Com.  295.     1  Saund. 
286.  (n.  9.)     2  Ib.  171.  d.  (n.  1.)  380.  (n.  14.)     1  Mod.  271. 


OF  THE  DECLARATION. 

f  to  his  right  of  action(w).     For  he  can  recover  only   CHAP. 
secundum  allegata  et  probata  ;  and  can  legally  prove      iv. 
no    material   fact,   which    the    declaration    does    not 
allege. 

^  8.  The  first  and  most  comprehensive  rule,  in 
respect  to  the  requisites  of  a  declaration,  is  that  it 
must  show  a  title,  (i.  e.  a  right  of  action),  in  the 
plaintirT(ft).  If  then  the  declaration,  which  is  the 
foundation  of  the  suit,  is  insufficient  in  law  to  war- 
rant a  judgment  in  the  plaintiff 's  favor  ;  no  subse- 
quent allegation  on  his  part  can  entitle  him  to  a  re.- 
covery(o).  He  must  recover  upon  the  grounds,  on 
which  he  first  places  his  claim,  or  not  at  all. 

^  9.  If,  therefore  the  declaration,  though  other- 
wise sufficient,  discloses  any  fact,  which  shows  that 
at  the  commencement  of  the  suit(l)  the  plaintiff  had 

(m)  Bac,  Abr.  Pleas,  &c.  A.  B.  1.     Doct.  PI.  85. 

(n)  Com.  Dig.  Pleader,  C.  34.     Bac.  Abr.  Pleas,  &c.  B.  I. 

(o)  Bac.  Abr.  Pleas,  &c.  B.  1. 


(1)  The  suit  is  considered  as  commenced,  from  the  issuing  of 
the  writ  (3  Black.  Com.  273.  285.  7  T.  R.  4.  1  Wils.  147)  : 
but  where  the  teste,  or  date  of  the  writ  is  fictitious,  the  true  time 
of  its  issuing  may  be  averred  and  proved,  whenever  the  purposes 
of  justice  require  it :  As,  to  let  in  a  plea  of  tender,  or  of  the  statute 
of  limitations.  (Bac.  Abr.  Tender,  D.  1  Stra.  638.  1  Wils. 
147.  Peake  Ev.  259.)  In  the  usual  practice  of  the  Court  of 
King's  Bench,  however,  the  suit  is  not  deemed  to  be  commenced 
till  the  filing  of  the  bill,  (or  declaration)  which  is  considered  in 
that  court  as  the  original.  (Cowp.  454.  456.  1  Wils.  147.  2 
Burr.  960.  8  Mod.  343.  1  Vent.  28.) 

23 


J74  OF  THE  DECLARATION. 

CHAP.    no  "ght  of  action  ;  he  cannot  have  judgment(p)  :  As 
iv.       where  in  debt  on  an  obligation,  it  appeared  from  the 

declaration,  that  the  writ  bore  date  before  the  time 

of  payment  appointed  in  the  deed.  For  the  cause 
of  action,  which  entitles  a  party  to  recover  by  suit, 
must  be  complete  at  the  time  when  the  suit  is  com- 
menced, (vide  ante,  note  1).  If  it  is  not  then  com- 
";  plete,  the  complaint  of  the  plaintiff  must  of  neces- 

sity be  either  untrue,  or  insufficient  in  law. 

?  ^ 

§  10.  For  any  matter,  accruing  after  the  com- 
mencement of  the  suit,  the  plaintiff  therefore  cannot 
recover^) — except  that  interest,  on  demands  car- 
rying interest,  is  recoverable  up  to  the  time  of  the 
judgment,  under  the  name  of  damages(r).  For  the 
interest  is  regarded  as  only  incident  to,  or  part  of, 
the  debt ;  and  that  interest,  which  accrues  after  the 
commencement  of  the  suit,  being  inseparable  from 
the  rest,  is  consequently  recoverable  in  no  other 
way  (5). 

§  11.  So  also,  if  the  declaration  omits  the  aver- 
ment of  any  fact,  which  is  of  gist  of  the  action 
— (as,  if  no  consideration  be  alleged,  in  assump- 

(p)  Cowp.  454.  Bac.  A.br.  Pleas,  &c.  B.  5.  7  Co.  24-5.  Cro. 
Eliz.  325. 

(q)  2Saund.  171.  c.  (n.  1.)      Cowp.  454. 

(r)  2  Burr.  1085.  1087.  2  T.  R.  58.  Doug.  376.  Chitt.  on 
Bills,  214.  Toller  on  Ex.  286-7.  2  Saund.  171.  c.  (n.  1.)  8 
Johns.  R.  446. 

(s)  1  Esp.  Rep.  110.  2  New  Rep.  206.  n.  3  Johns.  R.  229. 
5  Ib.  271. 


OF  THE  DECLARATION.  J75 

sit(2)  —  no  conversion  in  trover,  &c)  ;    the  omission    CHAP. 
is  fatal  (t).  iv. 

§  12.  The  gist  of  the  action  is  that,  without  Gist  of  the 
which  there  is  no  cause  of  action.  It  comprehends, 
therefore,  whatever  is  indispensable  in  law  to  a  right 
of  recovery  (u).  Hence,  if  any  thing  of  this  kind 
be  omitted,  no  title  can  appear  from  the  declaration  ; 
and  the  defect  is  of  course  incurable  (v). 

§  13.    Whenever  therefore  the  right  of  recovery  condition 
depends  upon  a  condition  precedent,  the  declaration 
must  aver  performance  of  it,  (or  what  is  equivalent 
to  performance),   to  entitle  the    plaintiff   to  recov- 
er^).    For  in  every  such  case,  performance  of  the 

(*)  Bac.  Abr.  Pleas,  &c.  B.  1.  Doct.  PI.  85.  1  Sid.  184.  Bull. 
N.  P.  33.  2  Salk.  519.  640.  7T.  R.  348.  351.  n.  5  Ib.  143. 
Com.  Dig.  Jlssumpsit,  H.  3.  6  East,  568.  8  Ib.  9.  2  Bos.  &  P.  79. 

(«)  Bac.  Abr.  Pleas,  &c.  B.  1.     Doct.  PI.  85. 

(v)  Bac.  Abr.  Pleas,  &c.  B.  1.  3  Black.  Com.  395.  4  T.  R. 
472.  2  H.  Black.  201.  Doug.  683. 

(«>)  7  Co.  10.  a.  Bac.  Abr.  Pleas,  &c.  B.  5.  (2.)  Com.  Dig. 
Pleader,  C.  51.  70-75.  Plowd.  25.  b.  Yelv.  134.  n.  1  T.  R. 
645.  7  Ib.  125.  1  Saund.  320.  2  H.  Black.  574. 

(2)  In  assumpsit  on  bills  of  exchange  and  promissory  notes, 
however,  the  mere  statement  of  the  facts,  which  create  the  de- 
fendant's liability,  dispenses  with  the  necessity  of  stating  the  con- 
sideration for  which  the  bill,  &c.  was  drawn,  accepted,  or  indorsed. 
(2  Bos.  &  P.  79.  1  Chitt.  PI.  295.)  For  these  instruments,  like 
specialties,  afford  prima  facie  internal  evidence  of  a  consideration, 
and  consequently  dispense  in  general,  with  the  proof  of  it.  A^id 
what  need  not  be  proved,  need  not  be  alleged.  (2  Ld.  Ray.  758. 
3  Salk.  70.  1  Black.  Rep.  487.  2  Black.  Com.  445.  Kyd  on 
Bills,  48.  3  Burr.  1516.  1523.  Chitt.  on  Bills,  9.  51.  201.  209. 


OF  THE  DECLARATION. 


CHAP,   condition,  or  what  the  law  holds  equivalent  to  it,  is  a 
iv.      constituent  and  indispensable  part  of  the  right  of  ac- 
-  tion  —  or  that,  without  which  there  can  be  no  cause 
of  action.      lu^*-£*-JU  A-H^**^  ** 


§  14.  Thus,  in  an  action  against  the  indorser  or 
drawer  of  a  bill  of  exchange,  if  the  declaration  does 
not  allege  a  demand  of  payment,  at  the  proper  time, 
on  the  drawee,  or  acceptor  —  or  ortiits  an  allegation  of 
due  notice  to  the  defendant,  of  the  refusal  of  pay- 
ment by  the  former  ;  the  omission  is  fatal(V).  For 
such  demand  and  notice  are  implied  conditions,  the 
performance  of  which,  by  the  holder,  is  essential  to 
the  liability  of  the  indorser  or  drawer. 

» 

Notice  and       &  15.    And  in  all  cases,  in  which  actual  notice  of 

request, 

when  to  b«   any  fact  to  the  defendant,  or  a  special  request,  is,  ei- 

alleged.  J 

ther  by  the  terms  or  the  nature  of  the  contract,  the 
condition  of  his  liability  ;  such  notice,  in  the  one 
case,  and  such  request,  in  the  other,  is  of  the  gist  of 
the  action,  and  must  therefore  be  specially  averred  in 
the  declaration  (y).  For  without  such  averment,  no 
complete  right  of  action  can  appear  from  the  decla- 
ration. 

^16.  And  whenever  an  actual  request  is  neces- 
sary to  be  stated,  the  general  averment,  '  although 

(x)  Doug.  G83.  Chitt.  on  Bills,  132-3.  188-9.  202-3.  5  Burr. 
2670.  1  T.  R.  712. 

(y)  Com.  Dig.  Pleader,  C.  69.  73.  Sav.  72.  1  Saund.  33. 
(n.  2.)  2  Keb.  126.  1  Stra.  88.  Hob.  68.  Com.  Dig.  Condition, 
10.  11.  14  East,  500.  16  Ib.  110.  1  Campb.  425.  5  T.  R.  409. 


OF  THE  DECLARATION. 

often    thereunto    requested,'    is   not    sufficient(z)  :     CHAP. 
That  averment  being  but  matter  of  form,  and  not        iv. 
traversable. 

^17.  It  is  never  necessary,  by  the  common 
law,  for  the  plaintiff,  in  his  declaration,  to  state,  or 
in  any  manner  to  take  notice  of  any  condition  subse- 
quent, annexed  to  the  right  which  he  asserts («). 
For  the  office  of  such  a  condition  is,  not  to  create 
the  right  on  which  the  plaintiff  founds  his  demand  ; 
but  to  qualify,  or  defeat  it.  The  condition,  there- 
fore, if  performed  or  complied  with,  furnishes  mat- 
ter of  defence,  which  it  is  for  the  defendant  to  plead. 
Thus  in  debt  on  bond,  it  is  not  necessary  for  the 
plaintiff,  in  his  declaration,  to  state  or  count  upon 
any  other  than  the  penal  part  of  the  instrument  ; 
leaving  the  condition  to  be  pleaded  by  the  defend- 
ant, if  it  affords  him  any  defence  ;  as  it  does,  if  per- 
formed^). For  the  penal  part  of  the  bond,  alone, 
constitutes  prima  facie,  a  right  of  action. 

^18.  The  plaintiff  may,  however,  in  an  action 
on  bond,  count  as  well  upon  the  condition,  as  upon 
the  penal  part ;  but  if  he  declares  in  this  manner, 
he  must  allege  the  breach  of  the  condition  in  his 
declaration,  instead  of  replying  it,  (as  he  must,  when 
he  counts  only  on  the  penal  part),  in  answer  to  the 

(z)  1  Saund.  33.  (n.  2).     1  Stra.  88. 

(a)  Com.  Dig.  Pleader,  C.  57.  7  Co.  10.  a.  b.  11.  a.  Bac. 
Abr.  Pleas,  &c.  B.  5.  (2).  1  T.  R.  638.  1  H.  Black.  254.  2 
Ib.  574. 

(6)  lid.  2  Chitt.  PI.  151—3. 


178  OF  THE  DECLARATION. 

CHAP,    defendant's  plea(c).     The  declaration,  when  formed 
iv.      in  the  former  manner,  is  called  a  special  one. 


HOW  much        &  19.  It  is  a  general  rule,  that  in  declaring  upon 

of  a  deed  .      . 

must  be        a  deed  or    other    instrument,   consisting    of  several 

set  out.  .  ..,„..  .        , 

distinct  parts,  the  plaintiff  is  required  to  state  only 
so  much  of  the  instrument,  as  constitutes,  prima 
facie,  a  complete  right  of  action  (<?).  And  if  any 
other  part  of  the  instrument  furnishes  the  means  of 
defeating  the  action ;  it  is  matter  of  defence,  of 
which  the  defendant  may,  on  his  part,  avail  himself 
for  that  purpose. 


Exceptions 
in  cove- 


^  20.  But  in  declaring  upon  a  covenant,  or  upon 
nants,&c.     articles  of  agreement,  an  exception,  (if  there  be  any), 
in  the  body  of  the  covenant,  &c.  must  be  set  out, 
and  the  subject-matter  of  the  exception  must  be  ex- 
cluded from  the  breach  assigned  (e). 

If  then  A.  covenants  to  convey  to  B.  a  certain 
farm,  except  one  particular  close ;  B.,  in  an  action 
on  the  covenant,  must  state  the  exception,  as  well  as 
the  rest  of  the  covenanting  clause  ;  and,  in  assigning 
the  breach,  must  aver  that  A.  has  not  conveyed  the 
farm,  except  the  one  specified  close.  For  the  ex- 
ception enters  into  the  description  of  the  covenant ; 
and  the  corresponding  exception,  in  the  assignment 
of  the  breach,  is  necessary  to  show  that  the  breach 

(c)  Bac.  Abr.  Pleas,  &c.  B.  1.  Doct.  PI.  84.  2  Chitt.  PI.  152-7. 

(d)  8  East,  7.  6  Ib.  567.   1  Chitt.  PI.  300-1.  352.  Doug.  667. 
1  Saund.  233.  (n.  2.) 

(e)  T.  Jon.  125.     Esp.  Dig.  300. 


OF  THE  DECLARATION.  179 

is  within  the  covenant.     If  the  declaration  should    CHAP. 
set  out  the   covenant  to  convey  the  farm,  without       iv. 
stating  the  exception ;   there  would  be  a  variance : 
And  if  the  exception,  though  stated  in  the  descrip- 
tion of  the  covenant,  were  omitted  in  the  assignment 
of    the   breach;    no    breach,   within  the  covenant, 
would  appear  in  the  declaration  :     Since  all  the  land, 
not  embraced  in  the  exception,  might  have  been  con- 
veyed, consistently  with  the  truth  of  such  an  assign- 
ment. 

§  21.  But  if  A.  covenants  to  convey  to  B.  a 
certain  farm,  with  a  separate  proviso,  that  on  A.'s 
performing  a  certain  act,  he  shall  not  be  bound  to 
convey  one  particular  close,  parcel  of  the  farm  ;  B. 
in  declaring  on  the  covenant  need  not  take  notice  of 
the  proviso(f).  For  it  does  not  enter  into  the  de- 
scription of  the  covenanting  clause,  on  which  the  ac- 
tion is  founded  ;  but  is  in  nature  of  a  condition 
subsequent,  of  which  A.  may  avail  himself  in  his  de- 
fence, if  he  has  performed  the  act  mentioned  in  the 
proviso. 

^  22.  A  distinction,  analogous  to  that  above  stat-  In  statutes 
ed,  prevails  in  declaring  on  statutes.  In  an  action 
founded  on  a  penal  statute,  the  subject  of  any  ex- 
ception, in  the  enacting  or  prohibitory  clause  of  the 
act,  must  in  the  declaration  be  excluded  by  aver- 
ment :  But  of  any  proviso  or  qualification,  in  a  sepa- 
rate substantive  clause,  the  declaration  need  not  take 

(/)  T.  Ray.  65.     1  Lev.  88.     Esp.  Dig.  300. 


I  8Q  OF  THE  DECLARATION. 

CHAP.  notice^).  In  the  first  case,  the  exception  is  an  es- 
iv.  sential  part  of  the  description  of  the  offence  or  thing 
-  prohibited  ;  in  the  latter,  the  proviso,  &c.  is  only 
distinct  matter  of  defence.  Thus,  if  a  statute  enacts 
that  if  any  person,  not  having  a  certain  qualification  , 
(as  a  freehold  estate),  shall  kill  certain  game,  he 
shall  incur  a  certain  penalty  ;  the  declaration,  in  an 
action  on  the  statute,  must  aver  that  the  defendant 
had  not  such  a  freehold.  But  if  the  act  contains  a 
separate  proviso,  that  if  he  shall  have  obtained  a  li- 
cense for  the  killing  from  a  magistrate,  he  shall  not 
be  liable  to  a  conviction  ;  it  need  not  be  stated  that 
he  had  no  such  license, 


c 


certainty  as  ^  23.  The  declaration,  like  all  other  pleadings, 
must  contain  certainty  (A).  This  requisite,  so  far 
as  regards  parties,  time  and  place,  has  already  been 
considered.  But  the  certainty  required  in  stating 
the  subject-matter,  or  matter  in  demand,  remains  to 
be  explained. 

§  24.  The  subject-matter  of  a  suit  embraces  all 
the  material  facts,  which  constitute  the  cause  of  ac-. 
tion  ;  and  consequently  comprehends,  (according  to 
the  nature  of  the  case),  the  contract  declared  upon, 
and  the  breach  of  it  —  or  the  wrong  complained  of, 
and  its  injurious  consequences  —  or  the  property,  of 
which  a  recovery  is  sought,  or  in  respect  to  which 

(g)  1  Burr.  153.  1  T.  R.  141.  6  Ib.  559.  7Ib.  27.  8  Ib. 
542.  1  East,  646.  2  McNall.  Ev.  544. 

(h)  Bac.  Abr.  Pleas,  &c.  B.  1.  Hob.  295.  Co.  Litt.  303.  a. 
Com.  Dig.  Pleader,  C.  21.  5  Co.  35. 


OF  THE  DECLARATION. 

the     alleged    injury  and   damage   have   been   done.    CHAP. 
But   the    requisite    of    certainty   respects   only   the       iv. 
manner  in  which  these  particulars  are  to  be   stated. 
And  in   most  cases,   \yhen  the  pleader   understands 
what  facts  are  necessary  to  be   stated,  there  is  very 
little    difficulty  in   alleging  them  with   the   requisite 
certainty ;  which,  in  general,  consists  merely  in  al- 
leging them  so  distinctly  and  explicitly,  as  to  exclude 
ambiguity,  and  make  the  meaning  of  the  averments 
clearly  intelligible. 

^  25.  From  the  nature  of  this  subject,  it  is  im- 
possible to  point  out,  by  any  definite  general  rule  or 
rules,  the  precise  degree  of  certainty,  which  may  be 
necessary,  in  all  cases,  in  setting  out  the  subject- 
matter  ;  and  hence  very  little  on  this  point  is  found 
in  the  law,  except  what  may  be  collected  from  par- 
ticular examples. 

§  26.  The  only  general  rule  of  extensive  applica- 
tion, in  respect  to  this  kind  of  certainty  is,  that 
the  subject-matter  of  the  action  must  be  described 
*n  the  declaration,  with  convenient  certainty  ;  and 
that  no  greater  certainty  is  required,  than  the  sub- 
ject will  conveniently  admit  of(t)  :  Or  in  other  words, 
that  if  the  averments  are  so  made,  that  the  adverse 
party,  the  counsel,  the  jury,  and  the  judges,  can  ful- 
ly understand  the  subject-matter  ;  the  declaration  is 

(t)  Bac.  Abr.  Pleas,  &c.  B.  5.  (5.)  1  Stra.  637.  Ld.  Ray. 
588.  1410. 

24 


OF  THE  DECLARATION. 

CHAP,     sufficiently  certain(&).      In  the  application  of   this 

iv.       rule  to  individual  cases,  the  court  is  necessarily  left, 

in  some  degree,  to  the  exercise  of   its  discretion; 

but  a  more  definite  general  rule  could  not  perhaps 

be  framed. 

§27.  In  actions  ex  contractu,  the  declaration 
must  distinctly  state  the  nature  and  essential  parts 
of  the  contract,  either  in  the  terms  of  it — or  in  sub- 
stance, and  according  to  its  legal  effect — together 
with  the  breach(/).  And  except  in  the  case  of  con- 
tracts under  seal,  and  negotiable  instruments,  the 
consideration  must  also  be  stated ;  as  the  contract 
will  otherwise  appear  from  the  declaration  to  be 
nudum  pactum(m). — Hence  in  an  action  on  a  deed, 
a  description  of  it,  as  '  a  certain  bond',  without  fur- 
ther particulars,  is  not  sufficient  (w)  ;  since  such  a 
description  would  not  identify  the  bond  sued  upon. 

§  28.  So  in  assumpsit  for  wages,  alleged  to  be 
due  in  consideration  of  the  plaintiff's  performing  '  a 
certain  voyage',  without  describing  it,  the  statement 
of  the  consideration  is  too  uncertain(o). — And  a 
justification,  alleged  to  be  '  by  virtue  of  a  certain 

(k)  Lawes'  PI.  53.  2  Bos.  &  P.  267.  Co.  Litt.  303.  a.  Com. 
Dig.  Pleader,  C.  17. 

(/)  1  Saund.  233.  (n.  2.)  2  Ib.  305.  (n.  13.)  366.  Doug. 
669.  1  T.  R.  240.  4  Ib.  560.  5  Ib.  498.  1  Chitt.  PI.  299.  351. 

(m)  6  East,  567.     8  Ib.  7. 

(»)  1  Bos.  &  P.  100.  102.     1  Chitt.  PI.  240. 

(o)  2  Bos.  &  P.  116,  &  Vid.  Ib.  265.     13  East,  102. 


OF  THE  DECLARATION.  J  33 

writ,'  without  setting  it  out,  would  be  ill  for  want  of   CHAP. 
certaintyQ?).  iv. 

§  29.  And  the  words  '  duly',  '  lawfully',  &c. 
without  a  statement  of  the  special  facts  of  which 
they  are  predicated,  have,  in  general,  no  effect^). 
For  such  terms  are  not  only  indefinite ;  but  affirm 
matter  of  law,  instead  of  fact,  and  consequently  are 
not  tr aver sable. 

§  30.  In  ejectment,  the  town,  city,  parish,  &c. 
and  the  county  in  which  the  land  lies,  must  be  stat- 
ed in  the  description  of  the  land(r).  In  some  of 
the  United  States,  the  boundaries  or  abuttals  are  also 
a  usual  part  of  the  description.  Great  precision  was 
indeed  formerly  required,  in  describing  the  land,  in 
ejectment ;  but  the  rule  is  much  relaxed  in  the  mod- 
ern practice.  Such  precision  is  now  held  unneces- 
sary— especially,  as  according  to  the  present  doctrine, 
the  lessor  of  the  plaintiff  must,  at  his  peril,  show  the 
land  to  the  sheriff,  on  the  execution (5). 

§31.  In  trespass  quare  dausum  fregit  also,  the 
close  must  be  described,  as  lying  in  a  certain  parish 
and  county  named ;  and  it  is  held  advisable  to  set 
out  also  the  abuttals,  or  name  of  the  close(^). — In 
the  United  States,  in  which  closes,  or  parcels  of 

(p)  1  Saund.  298.  n.  1.     1  Chitt.  PI.  227.  240. 
(</)  9  Co.  25.  a. 

(r)  Cro.  Eliz.  465.  3  Lev.  334.  5  Burr.  2673.  2  Chitt. 
PI.  394-400. 

(*)  Stra.  71.  1063.     1  Burr.  629.     Cowp.  350. 

(/)  2  Black.  R.  1089.     2  Chitt.  PI.  382-8.     Bull.  N.  P.  89. 


OF  THE  DECLARATION. 


CHAP,  land,  are  not  in  general  known  by  particular  ancient 
iv.  names,  a  description  by  abuttals,  or  by  lines  and  dis- 
tances,  would  seem  generally  indispensable.  And 
any  mistake,  in  a  description  by  abuttals,  is  fatal  ;  al- 
though the  parish  and  county  be  truly  laid(w). 
For  the  abuttals,  when  given,  are  a  local  description 
of  the  injury  complained  of. 

§  32.  In  some  cases,  where  the  facts,  which 
constitute  the  alleged  cause  of  action,  are  supposed 
to  lie  in  the  knowledge  of  the  defendant,  but  not  of 
the  plaintiff,  less  particularity  of  statement  is  re- 
quired in  the  declaration,  than  would  otherwise  be 
necessary(V).  Thus,  in  an  action  by  a  lessor  against 
an  assignee  of  the  term,  it  is  sufficient,  as  regards  the 
defendant's  interest  ;  to  aver  in  general  terms  that 
the  estate  of  the  lessee  came  to  him  '  by  assignment'  : 
For  the  plaintiff  is  not  supposed  to  know  all  the  par- 
ticulars of  the  defendant's  derivative  title  :  Whereas, 
in  an  action  by  the  assignee  against  the  lessor,  the 
declaration  must  state  specially  all  the  mesne  as- 
signments, down  to  himself:  For  the  assignee,  being 
privy  to  them,  is  presumed  to  be  able  to  state  them 
specifically  ;  and  therefore  is  not  allowed  to  allege 
his  title  generally(w). 

§  33.  Most  of  the  questions,  which  have  arisen 
in  regard  to  certainty  in  stating  the  subject-matter 

00  1  T.  R.  479.     2  Chitt.  PI.  387.  note  (n.) 
0>)  3  T.  R.  767.     8  East,  85.     Cora.  Dig.  Pleader,  C.  26.  42. 
(to)  1  Saund.  112.  n.     1  Chitt.  PI.  353.2  Ib.      196-7.    6  Mod. 
72.      Vid.  Bac.  Abr.  Pleas,  &c.  I.  3. 


OF  THE  DECLARATION. 

have  related  to  the  description  of  personal  chattels,    CHAP. 
in  actions  for  injuries  to  that  species  of  property.  iv. 

In  these,  however,  as  in  other  cases,  the  rule  be- 

Ante,  §  26. 

fore  stated  now  generally  prevails  :  viz.  that  the 
property  must  be  described  with  as  much  certainty, 
as  it  will  conveniently  admit  of;  and  that  no  greater 
certainty  than  this  is  necessary(z). 

^  34.  In  the  action  of  detinue,  indeed,  great  mi- 
nuteness of  description  has  been  considered  neces- 
sary ;  because  the  goods  are  to  be  specifically  re- 
stored to  the  plaintiff,  on  the  execution(a).  It  ap- 
pears, indeed,  to  have  been  deemed  necessary  to 
describe  the  goods  so  minutely,  that  the  sheriff 
might  be  able  to  identify  them,  by  the  mere  descrip- 
tion given  of  them  in  the  writ  of  execution.  And 
when  the  action  of  detinue  was  first  superseded  by 
that  of  trover,  as  great  precision  and  minuteness  of 
description  were  deemed  necessary  in  the  latter,  as 
in  the  former  action(6). 

^  35.  But  it  is  now  established,  that  in  trover, 
trespass,  and  other  actions  in  general,  for  injuries  to 
personal  chattels,  nothing  more  than  convenient  cer- 
tainty is  necessary  in  the  description  of  them(c). 

(z)  Vid.  ante,  §  26,  references  (i.  k.)  1  Vent.  114.  317.  1 
Ld.  Ray.  588.  2  Stra.  809.  1  Lev.  301.  2  Ib.  176.  Bac. 
Abr.  Pleas,  &c.  B.  5.  (5). 

(a)  10  Co.  57.  2  Saund.  74.  b.  (n.  1.)  Willes,  120.  3 
Black.  Com.  152.  2  Salk.  654. 

(6)  2  Saund.  74.  a.  (n.  1.)     Cro.  Eliz.  865.     5  Co.  34.  b. 

(c)  2  Saund.  74.  a.  (n.  1.)  2  Stra.  809.  Bull.  N.  P.  37. 
Esp.  Dig.  588.  Ld.  Ray.  588.  1219.  12  Mass.  R.  505. 


OF  THE  DECLARATION. 

CHAP.  I*1  these  actions  then,  it  is  necessary  to  describe  the 
iv.  goods,  by  specifying  distinctly  their  kind  or  kinds, 
together  with  their  quantity,  number,  weight  or 
measure(d)  ;  and  this  is  regularly  all  that  is  required 
for  the  purpose  of  certainty,  in  describing  them.  But 
number,  quantity,  &c.  alleged  in  the  declaration,  does 
not  regularly  require  strict  proof,  and  need  not  there- 
fore be  truly  stated,  except  when  alleged  in  the  re- 
cital or  statement  of  a  record,  written  instrument,  or 
express  contract(e).  For  except  in  these  cases,  the 
statement  of  a  wrong  number,  &c.  does  not  occa- 
sion a  variance.  And  in  the  cases  now  under  con- 
sideration, (trover,  trespass,  &c.),  if  the  plaintiff 
proves  the  wrongful  taking  away,  or  cpnversion,  of 
any  part  of  the  goods  duly  described  in  the  declara- 
tion, he  is  entitled  to  recover  pro  tanto. 

^  36.  And  when  the  subject  to  be  described  is 
supposed  to  comprehend  a  multiplicity  of  particulars, 
a  general  description  is  sufficient ;  not  only  because 
the  plaintiff  may  probably  be  incapable  of  describing 
them  specifically ;  but  also  because  a  detailed  de- 
scription of  them,  if  practicable,  would  produce 
e.  great  and  inconvenient  prolixity  in  the  pleadings. 
Hence  where  a  declaration  in  trover  alleged  the 
conversion  of  '  a  library  of  books,'  without  naming 
their  number,  titles  or  quality,  the  description  was 
held  sufficiently  certain^/).  And  in  an  action  for 

(d)  5  Co.  34.  b.     Bac.  Abr.  Trespass,  I.  2.  (1). 

(e)  Lawes'  PI.  48—9.     4  T,   R.  314.     Cro.  Car.  262.     2 
Black.  Rep.  1104.     Doug.     669. 

(/)  3  Bulstr.  31.  Carth.  110.  2  Burr.  772.  8  T.  R.  459.  1 
Bos.  &  P.  640.  Bac.  Abr.  Trover,  F.  1.  Sty.  25.  Gilb.  H.  C. 
P.  122. 


OF  THE  DECLARATION.  ]  37 

the  loss  of  goods,  by  the  burning  of  the  plaintiff's    CHAP. 
house,  the   goods  may  be  described  by  the  simple       iv. 

denomination   of  '  goods,'  without  any   designation  

of  their  quantity  or  kind(,g-)  ;  and  it  seems  that  in 

such  a  case,  the  words  « divers  goods'  would  be  suf-  Ante  §  32 

ficient. 

&  37.  In  actions  for  injuries  to  property,  whether  Value 

L       L        /'  when 

consisting  of  personal  chattels,  or  chattels  annexed  necessary 
to  the  realty,  (as  growing  crops,  &c.),  the  value  of  stated. 
the  property,  or  at  least  some  value,  must  be  alleg- 
ed^*-). This  is  required,  not  strictly  as  matter  of 
description,  to  identify  the  property  ;  but  because  it 
is  incumbent  on  a  plaintiff  claiming  damages,  to 
show  in  his  declaration  the  amount  of  the  damages 
which,  according  to  his  own  statement  of  the  case, 
he  has  sustained  ;  and  to  this  end,  he  is  required  to 
allege  the  value,  or  what  he  claims  to  be  the  value, 
of  the  property  converted,  destroyed  or  otherwise 
injured  ;  and  thus  to  furnish  (according  to  his  own 
showing),  a  prima  facie  rule  of  damages.  But  as 
he  is  not  obliged  to  state  the  true  value  ;  the  rule 
requiring  it  to  be  stated  would  seem  to  be  of  no 
great  practical  use. 

^  38.  In  actions  for  forcible  injuries — as  assault  'Vi  et 
and  battery,  false  imprisonment,  and  other  tres-  when' 
passes — the  declaration  must  allege  the  wrongful  "obe88* 

alleged. 

(g}  1  Keb.  825.  Plowd.  85.  118.  123.  Cro.  Eliz.  837.  1  H. 
Black.  284.  3  Bulstr.  31.  Finch's  Law,  48. 

(h)  Bac.  Abr.  Trespass,  I.  2.  (1.)  Trover,  F.  1.  2  Lev.  230. 
Cro.  Jac.  147-8.  1  Sid.  39.— Cont.  Esp.  Dig.  588.  Dub.  Cro. 
Jac.  130. 


|gg  OF  THE  DECLARATION. 

CHAP.    act  to  nave  keen  committed  *  with  force  and  arms,' 
iv.       and  '  against  the  peace '(*). 

And  by  the  common  law,  the  omission  of  these 
words  was  an  incurable  defect(&).  For  every  de- 
fendant, on  conviction,  in  a  civil  action,  of  a  forcible 
wrong  alleged  to  have  been  committed  vi  et  armis, 
&c.  was  obliged  to  pay  a  fine  to  the  king,  for  the 
breach  of  peace  implied  in  the  act ;  and  was  sub- 
jected to  the  judgment  of  capiatur  pro  fine,  under 
which  he  was  liable  to  be  arrested  and  imprisoned, 
until  the  fine  was  paid.  But  if  the  words  expres- 
sive of  the  force  were  omitted  in  the  declaration, 
the  judgment  of  capiatur  could  not  be  rendered  ; 
and  consequently,  payment  of  the  fine  could  not  be 
enforced  :  So  that  if  the  omission  of  the  words  in 
question  had  not  been  held  incurable,  even  by  ver- 
dict, the  crown  would,  by  such  omission,  have 
been  defrauded  of  the  fine  ;  and  the  judgment,  which 
the  wrong  required,  would  have  been  changed  into 
another  species  of  judgment,  (a  miser ecor did),  not 
adapted  to  the  action(Z). 

§  39.  And  though  now,  by  the  statute  5  W.  & 
M.  c.  12,  the  judgment  of  capiatur  pro  fine,  in  civil 
actions,  is  abolished ;  yet  as  that  statute  prescribes 
a  substitute  for  the  fine,  in  all  actions  for  forcible 
injuries  (viz.  the  payment  of  a  fixed  sum  by  the 

(«')  Bac.  Abr.  Tresp.  I.  1.  2  Salk.  636.  640.  1  Saund.  81.  82. 
(n.  1.)  140.  (n.  4.)  F.  N.  B.  196.  Com.  Dig.  Pleader,  3  M.  7. 

(fc)  lid. 

(/)  3  Black.  Com.  398.  App.  12.  Hob.  180.  Vide  post.  §§  81. 
82. 


OP  THE   DECLARATION.  ]  39 

plaintiff,  on  signing  judgment — which   sum   he    re-    CHAP. 
covers  back  by  the  judgment)  ;  and  as  it  seems  that      iv. 

this  substitute  cannot  be  exacted,  unless  the  wrong  is 

laid  '  vi  et  armisj  fee. ;  the  better  authority  appears 
to  be,  that  these  words  are  now  as  necessary  to  give 
effect  to  the  provisions  of  the  statute,  as  they  were, 
for  a  different  reason,  (i.  e.  to  warrant  a  judgment 
of  capiatur),  by  the  common  law(/w). 

§  40.  According  to  some  opinions,  however,  the 
words  '  vi  et  armis\  though  confessedly  necessary  in 
all  cases  of  trespass,  were  even  by  the  common  law, 
(before  the  statute  4  Ann.  c.  16),  only  matter  of 
form(n).  But  the  better  opinion  appears  to  be, 
that  they  were  necessary  in  substance(o).  Now 
however  the  omission  of  those  words,  and  also  of 
the  words  '  contra  pacem'f  may,  after  verdict,  be  sup- 
plied by  amendment,  under  the  statute  16  &  17  Car. 
2,  c.  8,  ^  1.  And  by  statute  4  fc  5  Ann.  c.  16,  the 
omission  of  the  words  vi  et  armis  and  contra  pacem, 
is  expressly  aided,  except  on  special  demurrer(p). 

^41.     In  declaring  upon  a   contract  or  convey-  ^{;^s|0  be 
ance  of  any  kind,  to  the  validity  of  which  a  deed  is, counted  °n- 
by  common  law,   necessary,  (as  a  grant,   covenant, 
&c.),  the  plaintiff  must  count  upon  the  deed;  i.  e.  he 
must   allege    the    contract,   &c.   to  be   by   deed,  or 

(HI)  Bac.  Abr.  Tresp.  I.  1.     1  Saund.  82.  (n.  1.)      Com.  Dig. 
Pleader,  3  M.  7.— Cont.  2  Ld.  Ray.  985. 

(n)  Cro.  Jac.  130.     2  Salk.  636.  640.     Carth.  66. 

(o)  Bac.  Abr.  Tresp.  I.  1.      1  Saund.  82.  (n.  1.) 
•  (»)  Bac.  Abr.  Amendment,  &,c.  B.     Tb.  Tresp.  I.  1. 

25 


OF  THE  DECLARATION. 

CHAP,  under  seal :  otherwise  the  declaration  will  be  insuf- 
iv.  ficient(</).  This  is  necessary,  on  the  general  prin- 
ciple, heretofore  stated,  that  the  declaration  must 
allege  all  that  is  essential  to  a  right  of  action.  For, 
as  the  contract,  &c.  in  the  case  now  supposed,  can- 
not take  effect  in  law,  except  by  deed ;  a  declaration, 
not  alleging  it  to  be  by  deed,  will  show  no  right  of 
action. 

§  42.  In  all  cases  falling  within  this  last  rule,  it 
must  appear  in  the  declaration,  in  some  form,  that 
the  contract,  &c.  is  under.  seal(r).  But  certain 
terms  of  technical  import — such  as  '  indenture', 
*  deed',  or  '  writing  obligatory' — supersede  the  ne- 
cessity of  an  express  averment  that  the  contract, 
&c.  is  under  seal(s)  :  Because  each  of  these  words, 
ex  m  termini,  imports  a  sealed  instrument.  It  is 
therefore  a  sufficient  compliance  with  the  rule,  to 
aver  that  the  defendant,  by  his  '  certain  deed',  or 
'  certain  writing  obligatory',  covenanted,  granted, 
&c.  But  describing  the  instrument  merely  as  a 
'  certain  writing'  is  not  sufficient  ;  as  such  a  de- 
scription does  not  legally  designate  a  deed(T) :  No 
other  than  a  sealed  instrument  being  a  deed. 

(q)  2  Wils.  376.  6  Co.  38.  43.  b.  2  Salk.  519.  Cro.  Eliz. 
571.  2  Stra.  814.  Esp.  Dig.  298.  1  Saund.  276.  (n.  1.)  1 
N.  Rep.  104.  1  M.  &  S.  573. 

(r)  lid. 

(a)  1  Saund.  291.  (n.  1.)  320.  (n.  3.)  4  Leon.  175.  Cro. 
Eliz.  737.  Cro.  Jac.  420.  1  Stra.  512.  6  Mod.  306.  1  Vent.  70. 

(f)  Cro.  Eliz.  571.  1  Saund.  291.  (n.  1.)  3  Lev.  234.  2 
Ld.  Ray.  1537-8.  Com.  Dig.  Pleader,  2  W.  9.  14. 


OF  THE  DECLARATION.  ]9] 

§  43.  But   where   an  action    is   founded  upon   a    CHAP. 
contract  or  conveyance,  which  at  common  law  is  val-       iv. 

id,  without  deed  or  writing,   but  which   the  statute-  

law   requires  to  be  ^written,  (as  on  any  of  the  con-  required  by 
tracts  embraced  by  the  statute  of  frauds  and  perm-  L  written, 

.      N  1  J  •'.         how  to  be 

nes),  the  declaration  need  not  count  upon,  or  take  declared  up- 
notice  of  the  writing(w). — Thus  if  an  action  is  ° 
brought  on  a  promise  by  one  person  to  pay  the  debt 
of  another — or  upon  a  promise  by  an  executor  or 
administrator,  to  pay  a  debt  due  from  his  testator  or 
intestate ;  the  declaration  need  not  aver  that  the 
promise,  or  any  note  or  memorandum  of  it,  is  in 
writing,  even  if  such  be  the  fact(V).  For  the 
statute  of  frauds,  (which  in  each  of  these  cases  re- 
quires the  promise  to  be  written),  though  it  intro- 
duces a  new  rule  of  evidence,  does  not  alter  or  affect 
the  manner  of  pleading(w) :  And  as  the  promises 
were,  before  the  statute,  valid  without  writing,  and 
might  therefore  have  been  well  declared  upon  at 
common  law,  without  counting  upon  any  writing  ; 
the  same  mode  of  declaring  upon  them  is  still  good. 
It  is  sufficient  in  these  cases,  therefore,  to-  show  the 
writing  in  evidence.  It  may  be  added,  that  in  this 
class  of  cases,  the  writing  required  by  the  statute  is 
not  regarded  as  an  instrument  creating  the  right  as- 
serted in  the  declaration  ;  but  as  mere  evidence  of 

(w)  Bull.  N.  P.  279.  2  Salk.  519.  1  Saund.  9.  a.  (n.  1.) 
276.  (n.  1.)  11  Price,  504.  3  Burr.  1890.  2  Show.  88.  12 
Mod.  540.  Bac.  Abr.  Statute,  L.  3.  Agreement,  C.  1  Caines' 
R.  45.  4  Johns.  R.  237.  4  Greenleaf,  1. 

(t>)  lid. 

(w)  I  Saurid.  9.  a.  (n.  1.)  211.  (n.  2.)  276.  (n.  1.)  3  T.  R. 
156.  2  Salk.  519. 


OF  THE  DECLARATION. 


CHAP.    a  Par°l  contract(o:).     This  rule  extends  to  declara- 
iv.      tions  upon  all  the   several    kinds  of    promises  and 
agreements  contemplated  by  the  above  statute(?/). 

^  44.  On  the  same  principle,  a  lease,  or  an  as- 
signment of  a  lease,  or  a  conveyance  with  livery  of 
seisin,  in  fee,  in  tail,  or  for  life,  may  be  pleaded  with- 
out the  allegation  of  any  deed  or  writing,  even  if 
the  conveyance,  &c.  were  actually  made  by  deed, 
&c.(z)  :  Because,  by  the  common  law,  no  writing  of 
any  kind  is  necessary  to  such  conveyance,  &c.  (3)  ; 
and  consequently  no  writing  need  be  alleged,  in 
pleading  it. 

§  45.  And  if,  to  a  declaration  upon  any  promise 
writing.0"1  or  agreement  within  the  statute  of  frauds,  the  de- 
fendant demurs;  he  by  demurring  confesses  the 
promise,  as  being  in  writing,  —  however  the  fact  may 
be(#).  For  as  the  demurrer,  by  confessing  the 
promise,  precludes  all  proof  of  it  —  so  that  the 
plaintiff  cannot  exhibit  a  written  agreement  in  evi- 
dence, if  he  has  one  ;  the  law  must  intend  that  the 

(a;)  7  T.  R.  350-1.  n.     Cowp.  289. 

(!/)  lid- 

(z)  Co.  Litt.  121.  b.  9.  a.  (n.  1.)      1  Saund.  276.  (n.  1.) 

(a)  Cowp.  289.     7  T.  R.  350-1.  n. 

(3)  If,  however,  the  action  is  founded  immediately  vpon  any 
stipulation  in  (he  deed,  (as  upon  a  covenant  in  it),  the  deed  must 
be  pleaded,  by  the  rule  of  the  common  law.  For  the  deed  itself 
necessarily  enters  into  the  description  of  any  covenant,  &c.  con- 
tained in  it.  (1  Saund.  276.  u.  1.  Cro.  Eliz.  571.  1  Lev.  88.) 
Besides,  a  covenant  cannot  exist,  except  by  deed. 


OF  THE  DECLARATION. 

promise,  thus  confessed,  is  one  which  the  plaintiff   CHAP. 
has  the  means  of  proving  by  legal  evidence — i.  e.       iv. 
that  it    is    in  writing.     If  it   were  otherwise,    the 
plaintiff,    though   possessed  of  written   evidence   of 
the  promise,  would  lose  the  whole  benefit  of  it  by 
the  defendant's  demurring. 

&  46.  But  if  any  agreement  within  the  statute  How  to  be 

3  .  .  .      pleaded  in 

of  frauds  is  pleaded  in  bar  of  an  action  ;  the  plea,  it  kar. 
is  held,  must  show  that  the  agreement,  or  some  note 
or  memorandum  of  it,  is  in  writing(6). — Thus  if  in 
assumpsit,  by  A.  against  B.,  the  defendant  pleads 
that  the  plaintiff  has  accepted,  in  satisfaction  of  his 
demand,  an  agreement  by  C.  to  pay  the  debt ;  the 
plea  must  show  that  C.'s  agreement  is  in  writing. 
For  the  plea  confesses  a  cause  of  action,  or  legal 
claim,  once  existing  in  favor  of  the  plaintiff;  and 
this  cannot  be  barred  or  destroyed,  it  is  said,  by  any 
substituted  claim,  which  is  not  itself  shown  to  be 
such  as  will  support  an  action. 

^  47.  When  a  contract  or  conveyance,  unknown  Devises, 
to  the  common  law,  but  authorized  by  statute,  and  piead^i. 
by  the  statute  required    to  be  in  writing,  is  to  be 
stated  in  any  stage  of  the  pleadings,  it  must  be  al- 
leged to  be  in  writing(c). 

(b)  T.  Ray.  450.  T.  Jon.  158.  Bull.  N.  P.  279.  1  Saund. 
276.  a.  (n.  2.)  2  Wils.  49.  Roberts  on  St.  of  Frauds,  203.  note. 
Vide  2  Salk.  519,  Evans'  note.  Lawes'  PI.  in  Assump.  90. 

(c)Plowd.  376.  12  Mod.  540.  2  Salk.  519.  Bac.  Abr.  Statute, 
L.  3.  1  Saund.  276.  a.  (n.  2.) 


OF  THE  DECLARATION. 

CHAP.  Thus  where  a  party  declares  upon,  or  otherwise 
iv.  pleads,  a  devise  of  real  property,  he  must  aver  that 

the  devise  was  made  in  writing.  This  is  necessary, 

upon  the  same  general  principle  before  mentioned, 

An  e  6  4i  tn^t  ^  pleader  must  allege  all  that  is  essential  in 
law,  to  the  right  which  he  asserts  in  pleading.  For 
a  devise  of  realty,  being  unknown  to  the  common 
law ;  no  form  of  pleading  it  could,  by  the  ancient 
common  law,  be  prescribed.  And  as  the  statute  of 
Wills,  (32  Hen.  8.  c.  1),  which  first  authorized  such 
devises,  required  them  to  be  in  writing ;  no  right, 
under  a  devise  not  in  writing,  could  ever  have  ex- 
isted in  the  law :  And  therefore  no  devise  could 
ever  have  been  well  pleaded,  without  an  averment 
that  it  was  in  writing :  Since  all  that  is  necessary  to 
its  validity,  or  legal  existence,  could  not  otherwise 
have  appeared  from  the  pleading. 

f 

^  48.  I  And    the  same  reasons,  which   require  a 

devise  to^be  pleaded  as  being  in  writing,  render  it 
equally  necessary  to  allege  an  observance  of  all  the 
other  requisites,  prescribed  by  statute  as  essential  to 
its  validity  :  These  requisites  being  expressly  made 
as  indispensable  to  the  validity  of  such  instruments, 
as  writing  itself,  j  And  hence,  he  who  now  pleads  a 
devise,  must  aver  not  only  that  it  is  in  writing,  as 
provided  by  the  statute  of  Wills  (32  Hen.  8)  ;  but 
also  that  it  is  signed  and  attested,  according  to  the 
provisions  of  the  statute  of  frauds  (29  Car.  2,  c.  3, 
§  5.)  For  this  latter  enactment,  relating  to  the 
same  subject-matter  as  that  of  the  statute  of  Wills, 
and  being  in  effect  only  supplementary  to  it,  is  to  be 


OF  THE  DECLARATION.  ]95 

taken  notice  of  in  pleading,  as  if  it  formed  a  part    CHAP. 
of  the  elder  statute(cc).  iv. 

^  49.  A  declaration,  though  consisting  of  a  single  ^^1°" 
count,  may  be  good  as  to  part  of  what  the  plaintiff  f^d  m  part 
demands,  and  ill  for  the  residue  :      In  which  case,  if 
the  whole  be  demurred   to,  the  plaintiff  may  have 
judgment  for  the  part  which  is  good(cT)(4).     Thus, 
if  in  covenant  broken,  the  declaration  assigns  two 
breaches,  one  of  which  is  well  assigned,  and  the  oth- 
er ill — or  if  in  trover  for  two  chattels,  one  of  them 
is  sufficiently  described,   and    the  other  not  so ;    the 
plaintiff  may,  in  either  case,  have  judgment  for  that 
which    is    well   pleaded(e).      For  in  these,   and    all 
similar  cases,   that  part  of  the  declaration,  which  is 
sufficient,  shows  of  itself  a  complete  right  of  action, 
which  cannot  be  destroyed  by  the  part  which  is  worth- 
less. 

^  50.     A   declaration   may   be    general,  or    spe- 
cial(f).      Thus    in   debt   on     bond,    a   declaration, 

(cc)  Bac.  Abr.  Statute,  L.  3.     Syst.  PI.  439.    2  Chitt.  PI.  231. 
Fid.  6  Taunt.  628. 

(d)  Bac.  Abr.  Pleas,  &c.  B.  6.     1  Saund.  286.  (n.  9.)     2  Ib. 
380.    (n.    14.)     Cro.    Jac.   557.     Com.   Dig.    Pleader,   C.    32. 
Lawes'  PI.  59.  60.   1  Salk.  218.   11  East,  565.   3  Caines' R.  89. 

(e)  lid.      6  Johns.  R.  65. 

(/)  Bac.  Abr.  Pleas,  &c.  B.  1.     Doct.  PI.  84. 

(4)  It  is  assumed  in  this  rule,  that  the  demand  in  the  declara- 
tion is  divisible  into  two  or  more  distinct  claims,  of  which  one 
alone  constitutes  a  right  of  action — as  in  the  examples  which  fol- 
low in  the  text.  For  if  a  declaration  founded  on  one  indivisible 
demand,  (as  on  a  single  promise,  or  a  single  breach  of  covenant, 
or  the  conversion  of  a  single  chattel),  is  ill  in  part,  it  is  necessa- 
rily so  in  toto. 


OF  THE  DECLARATION. 

CHAP,    counting  on  the  penal  part  only,  is  general :     But  if 
iv.      it  sets  out  both  the  penalty  and  the  condition,  and  as- 

signs  the  breach  ;   it  is  special.     In  assumpsit  also, 

if  the  declaration  states  only  a  general  legal  liability 
and  a  general  promise  to  pay,  in  the  form  of  a  com- 
mon count ;  it  is  general :  If  it  alleges  a  special  ex- 
press agreement,  and  a  specific  consideration,  accord- 
ing to  the  usual  forms  of  declaring  upon  express  pro- 
mises ;  it  is  special. — And  a  declaration  may  contain 
both  special  and  general  counts. 

Declaration       &  51.  The  declaration  must  agree  with,  or  pur- 

must  pursue  7  f 

the  writ.  sue<>  the  complaint  made  in  the  writ(g).  For  the 
writ  is  the  foundation  of  all  the  subsequent  proceed- 
ings, and  indeed  confers  upon  the  court  all  its  autho- 
rity to  proceed,  in  each  particular  action.  Besides, 
the  declaration  is,  or  ought  to  be,  merely  an  enlarged 

Ante)Ch.2.  exposition  of  the  writ ;  and  must  of  course  follow  up 
the  same  complaint,  as  is  contained  in  the  writ.  If, 
therefore,  the  declaration  varies  from  the  writ — as  if 
the  writ  sounds  in  tort,  and  the  declaration  in  con- 
tract, or  t>  converse — the  latter  is  an  abandonment  of 
the  complaint  in  the  writ ;  and  the  court  has,  strictly, 
no  authority  to  proceed  in  the  suit.  In  such  a  case,  ] 
the  declaration  itself  is  said  to  '  abate  the  writ'(A).  / 

Of  the  Joinder  of  Parties  in  one  Declaration. 
i.  joinder         &  52.  Under  this  head,  it  may  be  premised,  that 

«f   tilaintiffe  3  J 

the  remedy  or  redress,  which  the  law  affords  in  any 

(g)  Bac.  Abr.  Pleas,  &c.  B.  4.     Doct.  PL  84.     Hob.  180. 
(h)  Bac.  Abr.  Pleas,  &c.  B.  4.     Abatement,  I. 


of  plaintiffs. 


OF  THE  DECLARATION.  J07 

given  case,  for  the  violation  or  deprivation  of  a  legal    CHAP. 
right,   belongs   exclusively   to   him   or  them,  whose       iv. 
right  has  been  violated,  or  is  withheld. 

T      '         1  f 

Joinder  of 
plaintiffs. 

If  then,  the  right  of  action  is  in  one  person  only, 
another  may  not  be  joined  with  him,  as  plaintiff  in 
the  action  (i).  For  he  whose  sole  right  is  violated, 
cannot,  by  joining  another  person  in  his  complaint, 
make  the  defendant  liable  to  a  stranger.  This  rule 
extends  both  to  actions  ex  contractu,  and  ex  delicto. 
(Vid.  note  (5).  post.  ^  56). 

^  53.  When  the  several  rights  of  two  or  more 
persons  are  violated,  even  by  one  and  the  same  act 
or  wrong, — (as  if  the  same  slanderous  words  are 
spoken,  by  one  and  the  same  person,  at  the  same 
time  and  place,  and  in  the  same  sentence,  of  A.  and 
B.  ;  or  if  the  persons  of  A.  and  B.  are  both  injured, 
or  their  several  interests  violated,  by  one  and  the 
same  tortious  act) — they  cannot  regularly,  in  either 
case,  join  in  an  action  for  the  injuries  thus  occasion- 
ed^). For  there  is  no  joint  right  violated. 

tb 

On  this  principle,  tenants  in  common  cannot  join, 

in  a  real  action,  or  in  ejectment,  to  recover  the  lands  **" 
which    they  hold    in   common(/) :     Their   interests 

(t)  Com.  Dig.  Abatement,  E.  15  Godb.  440.  Hob.  72.  Cro. 
Car.  300.  408.  575. 

(A:)  Bac.  Abr.  Pleas,  &c.  B.  2.  Gouldsb.  76.  Keilw.  55.  a. 
Ow.  106.  Cro.  Car.  512.  Bac.  Abr.  Slander,  S.  1.  Yelv.  129. 
Co.  Litt.  145.  b.  2  Saund.  117.  (n.  2.) 

(/)  2  Black.  Com.  194.  Co.  Litt.  197.  2  Wils.  232.  2  H. 
Black.  387.  2  Black.  Rep.  1077.  Bac.  Abr.  Joint  Tenants, 
&c.  K. 

26 


OF  THE  DECLARATION. 


CHAP,    being  not  joint,  but  several.     (Vide  note  (5),  post. 
iv.      §  56.) 


§  54.  If  however  slanderous  words  are  spoken 
or  written  of  two  partners  in  trade,  as  such  —  i.  e. 
if  the  slander  or  libel  affect  their  joint  interest  as 
traders,  and  occasion  special  damage  ;  they  may  join 
in  an  action  for  the  injury.  For  the  interest,  and 
the  injury  sustained,  are  joint.  And  there  appears 
to  be  no  reason  why  the  same  rule  should  not 
hold,  if  the  words  were  in  themselves  actionable, 
and  no  special  damage  alleged.  For  the  damage, 
implied  or  presumed  in  the  latter  case,  would  be 
joint,  in  every  sense  in  which  special  damage  can 
be  so(w), 

^  55.  Where  a  cause  of  action  accrues  in  right  of 
a  feme  covert,  if  the  right  is  such  as  would,  on  the 
husband's  death,  (he  dying  first),  survive  to  her  ; 
they  must  both,  regularly,  join  as  co-plaintiffs  in  the 
action(w).  For  she  cannot  sue  alone,  by  reason  of 
the  legal  disability  of  femes  covert  thus  to  sue  ;  and 
if  the  husband  alone  could  maintain  the  action,  he 
might,  in  certain  events,  deprive  her  of  her  sole 

right  of  recovery  after  his  own  death. 
,XM/»£»   fett«*  /ittJt  £, 

(m)  3  Bos.  &  P.  150.  3  Bing.  452.  2  East,  426.  2  Saund. 
117.  a.  (n.  2.)  2  Selw.  N.  P.  1162.  Yelv.  129,  notis  Metcalf. 
Vid.  etiam  17  Mass.  R.  182  ;  and  Collins  v.  Barrett,  mentioned 
by  Best,  C.  J.  in  3  Bing.  456. 

(n)  1  Roll.  Ab.  347.  2  Wils.  424.'  3  T.  R.  631.  1  Bulstr.  21. 
Lane,  53-4,  1  Fonbl.  Eq.  309.  Bac,  Abr.  Baron  $  Feme,  K. 


OF  THE  DECLARATION.  199 

§  56.     If  the  right  of  action  is  in  two  or  more    CHAP. 
persons  jointly,  they  all  may  and   ought  to  join,  as       iv. 

plaintifife  in  the  action,  whether  it  be  ex  contractu  or  

ex  delicto(o).  For  on  the  general  principle,  first 
premised  (Ante,  §  52),  one  person  ought  not  to  be 
allowed  to  sue  alone,  for  the  whole  of  that,  of  which 
he  is  entitled  to  only  a  part ;  and  on  the  other  hand, 
the  defendant  ought  not  to  be  subjected  more  than 
once,  for  one  and  the  same  cause  or  thing.  On  this 
principle,  joint  creditors,  whether  by  record,  special- 
ty, or  simple  contract,  must  all  join  in  an  action  to 
recover  the  debt(jo).  So  also,  in  general,  joint 
tenants  and  coparceners  must,  respectively,  join  in 
actions  to  recover  the  estate,  which  they  respective- 
ly hold  together(5) ;  and  in  all  actions  for  injuries 
to  theirjoint  property^). 

(o)  Com.  Dig.  Abatement,  E.  8.  Pleader,  2  V.  2.  1  Saund. 
153.  291.  f.  (n.  4.)  Bac.  Abr.  Pleas,  &c.  B.  2.  Co.  Litt.  164. 
a.  5  Co.  18.  b.  2  Stra.  820.  1146. 

(p)  5  Co.  18.  b.  Yelv.  177.  1  Saund.  155.  291,  f.  (n.  4.)  1 
Sid.  238.  1  Vent.  34.  3  T.  R.  782. 

(g)  Bac.  Abr.  Joint  Tenants,  &c.  K.     Co.  Litt.  180.  b. 

(5)  It  appears  to  have  been  long  considered  as  an  established 
rule  of  the  common  law,  that  joint-tenants  and  coparceners  must, 
respectively,  all  join  in  actions  relating  to  their  respective  estates. 
But  in  some  recent  cases,  it  has  been  held,  that  in  ejectment  they 
may  either  join  or  sue  severally,  at  their  election.  (12  East,  39. 
57.  6  Ib.  173.  11  Ib.  288.  2  Caines'  R.  169)  :  Inasmuch 
as  a  several  demise,  by  one  of  the  .tenants,  to  the  plaintiff  in  the 
action,  is  a  severance  of  the  joint  tenancy  or  coparcenary.  In  the 
state  of  Connecticut,  joint-tenants,  coparceners,  and  tenants  in 
common,  have  immemorially  joined,  or  severed,  at  their  election, 
both  in  ejectment,  and  disseisin.  (1  Root,  246.  4  Day,  298.  303.) 


200  OF  THE  DECLARATION. 

CH\P.        §  57.     And  although  tenants  in   common   cannot 
iv.      join,  in  real  actions,  or  in  ejectment — because  their 

interest  is  several ;  yet  in  personal  actions,  in  which 

plaintiffs"  damages  only  are  recoverable — as  in  trespass  quare 
clausum  fregit,  in  case  for  a  nuisance  to  their  land, 
and  in  all  actions  for  injuries  to  personal  chattels — 
they  must  all  join(r).  For  in  such  cases,  as  the 
damages  are  entire,  and  will  survive  entire,  to  the 
surviving  tenant ;  they  are  in  effect  joint,  and  so, 
consequently,  is  the  right  of  action. 

s~ 

I   ^  58.  It  has  already  been  stated,  that  where  the 
'right  of  action  is  in  two  or  more,  jointly — as  joint 
obligees,  covenantees,  &c.  the  action  must  be  brought 
by  all  of  them.     So  also,  where  one  covenants  with, 
or  otherwise  binds  himself  to,  two  or  more  persons, 
jointly  and  severally,  if  it  appear  from  the  contract, 
that  their  interest  is  joint ;  they  must  all,  if  living, 
join  in  the  action(V).     Thus  if  A.  conveys  land  to 
B.  and  C.  jointly,  and  covenants  with   both,  and  each 
of  them,   (thus   making   the  covenant  joint  and  se- 
veral), that  he  is  well  seised,  &c.  ;  B.  and  C.  must 
join,  in    an   action  on    the  covenant(Y).     For  wrhen 
the  interest  of  the  covenantees  is  joint,  the  right  of 
recovery  is  so  :  And  the  defendant  ought  not  to  be 
subjected  to  two  suits,  for  one  and  the  same  entire 
cause  or  thing. 

(r)  Litt.  §  315.  Cro.  Jac.  231.  Co.  Litt.  198.  a.  Yelv.  162. 
Com.  Dig.  Matcmeni,  E.  10.  Bac.  Abr.  Joint-tenants,  &c.  K. 

(»)  5  Co.  18.  b.  19.  a.  1  East,  497.  1  Saund.  153.  &  n.  1. 
Bac.  Abr.  Obligation,  D.  3. 

(/)  lid. 


OF  THE  DECLARATION.  201 

§  59.  But  upon  such  a  covenant,  (or,  as  it  seems,    CHAP. 
even  on  one  that  is  joint  only},  if  it  appears  from  the       iv. 

deed,  that  the  interest  of  the  covenantees  is  several ;  

they  may  sue  in  separate  actions(w).  For  the  inter- 
est of  the  covenantees  being  several ;  the  right 
to  be  asserted  by  action,  is  consequently  several. 

If  then  A.,  by  one  and  the  same  deed,  leases 
Black-acre  to  B.  and  White-acre  to  C.,  and  covenants 
as  to  the  whole,  with  both  and  each  of  them  ;  B.  and 
C.  may  each  maintain  a  several  action  on  the  cove- 
nant. And  the  rule,  it  seems,  would  be  the  same,  if 
the  covenant  had  been  with  both  the  covenantees  on- 
ly, and  with  each  of  them(#). 

^  60.  Where  one  is  bound  by  contract,  to  two  per- 
sons, (as  B.  &,  C.),  severally,  and  only  severally, 
(their  interest  being  also  several),  they  not  only  may, 
but  it  seems  must,  sue  upon  it  separately  (w).  For 
the  case  is,  in  effect,  that  of  two  distinct  contracts, 
though  contained  in  one  instrument.  And  in  such  a 
case,  B.  and  C.  may  each  in  his  own  sole  action, 
declare  upon  the  obligation  as  one  made  to  himself 
alone,  without  naming  the  other  :  This  form  of  de- 
claring being  according  to  the  legal  effect  of  the  con- 
tract^). ) 

(«)  5  Co.  18.  19.  Bull.  N.  P.  157-8.  2  Mod.  82.  1  Saund. 
154.  (n.  1.)  2  Ib.  116.  a.  b.  (n.  2.)  1  East,  497.  Yelv.  177. 

(B)  5  Co.  18.  1  Saund.  154.  (n.  1.)  Yelv.  177.  Metcalf's 
ed.  n.  1. 

(tc)  Cro.  Eliz.  729.     Mo.  667.     Yelv.  25. 

tx)  lid. 


202  OF  THE  DECLARATION. 

CHAP.        §  61.  On  the  death  of  one  of  two  or  more  joint 
iv.      obligees,  promisees,  &c.  the  action  must  be   brought 

— by  the  survivor,  or,  (if  there  be  more  than  one),  by 

plaintiffs,  all  the  survivor  s(y).  For  by  the  common  law, 
rights  of  action,  vested  jointly  in  several  persons, 
survive  entire,  on  the  death  of  any  of  them,  to  the 
survivors,  and  ultimately  to  the  last  survivor(2r) : 
But  while  there  are  several  survivors,  the  right  of  ac- 
tion, as  between  themselves,  continues  joint. 

If  therefore,  one  of  two  joint  obligees  in  a  bond  ' 
dies ;  his  executor  or  administrator  can  neither  join, 
in  an  action  upon  it,  with  the  survivor,  nor  sue 
alone,  at  law,  for  the  part  which  belonged  to  his 
testator  or  intestate(a).  For  the  remedy,  at  law, 
survives  entire  to  the  surviving  obligee ;  who  howev- 
er receives  the  share  of  the  deceased  obligee  in  the 
avails  of  the  suit,  as  trustee  to  the  personal  repre- 
sentatives of  the  latter,  and  must  therefore  account 
for  it  with  them(6). 

^  62.  But  when  the  contract  is  with  two  or 
more  severally,  and  their  interest  is  several,  no  right 
of  survivorship  accrues  between  them.  In  this  case 
therefore,  each,  on  his  own  death,  transmits  his 
several  interest,  and  right  of  action,  to  his  own  re- 

(y}  1  Saund.  291.  f.  (n.  4.)  2  Salk.  444.  Carth.  170. 
Comb.  474.  1  Bos.  &  P.  445.  1  East,  497. 

(*)  lid. 

(a)  1  East,  497.     1  Bos.  &  P.  445. 

(6)  1  Ves.  242.  252.  1  Ld.  Ray.  340.  Toller  on  Ex'rs.  155. 
163.  444-5. 


OF  THE  DECLARATION.  203 

presentatives(c) :      The    case    being,  in  effect,  the    CHAP. 
same  as  if  a  separate  contract  had  been  made  with       iv. 
each  of  the  original  parties,  for  his  part  of  the  debt  

,  .  Joinder  of 

or  demand.  plaintiffs. 

^  63.  Where  there  are  two  or  more  executors.  Executors, 
named  in  a  will,  they  must  all,  if  living,  join  as 
plaintiffs,  or  at  least  be  named  as  such,  in  personal 
actions  brought  in  right  of  the  testator(c?).  For  their 
rights  and  interests,  as  executors,  are  in  so  strict  a 
sense  joint,  that  they  are  all  considered  in  law  as 
constituting  but  one  officer  or  representative(e).  And 
where  one  of  several  co-executors,  when  named  as 
co-plaintiff,  refuses  to  join  in  pursuing  the  action, 
he  may  be  summoned  and  severed,  i.  e.  separated 
from  the  suit — after  which,  the  others  may  proceed 
in  the  action  without  him(f)  :  Since  the  judgment 
of  severance  makes  him  a  stranger  to  the  right  of 
action. 

^  64.  On  the  death  of  one  of  several  co-execu- 
tors, the  executor  of  the  deceased  executor  can 
not  join  in  actions,  with  the  surviving  original  ex- 
ecutors, nor  sue  at  law,  at  all,  in  right  of  the  first 
testator^).  For  rights  of  action  survive  entire, 

(c)  Cro.  Eliz.  729.     2  Burr.  1197.     1  Saund.  154.  (n.  1.) 

(d)  Off.  Ex.  42.     9  Co.  37.     Toller  on   Ex.  41.  45.  446.     1 
Saund.  291.  g.     Com.  Dig.  Abatement,  E.  13. 

(e)  Off.  Ex.  259.     Godolph.   134.     Toller  on  Ex.  243.  359. 
3  T.  R.  558.     Com.  Dig.  Administration,  G. 

(/)  Cro.  Car.  420.  Toller  on  Ex.  446.  Carth.  61.  Dyer,  319.  b. 
(g}  Bac.  Abr.    Executors,  &c.  G.     1  Ves.  10.     3   Atk.  509. 
Toller  on  Ex's.  363. 


THE  DECLARATION. 


CHAP,    between  co-executors,    as  between  original  parties 
iv.       having  joint  rights  of  action. 


ants. 


§  65.  Co-administrators  also  must  all,  if  living, 
join  in  actions,  like  co-executors(^)  ;  and  for  the 
same  reason,  viz.  that  their  right  to  sue  is  joint. 
And  on  the  death  of  one  of  them,  the  right  survives 
to  the  others,  as  in  the  case  of  executors(f). 

of' defend-  ^  66.  In  regard  to  the  joinder  of  defendants,  it 
is  a  general  principle,  that  where  a  legal  right  has 
been  violated,  or  is  withheld,  by  the  joint  act  or 
joint  default  of  two  or  more  persons,  they  may  all 
be  joined  as  defendants  in  one  action,  whether  it  be 
ex  contractu  or  ex  delicto.  And  if  the  action  be  ex 
contractu,  they  must  all,  if  living,  be  thus  joined  ; 
although  in  actions  ex  delicto,  they  may  generally  be 
joined  or  not,  at  the  option  of  the  party  injured. 
The  reason  of  the  distinction  is,  that  in  contracts,  if 
the  obligation  or  duty  be  joint  only ;  the  non-per- 
formance or  default,  and  consequently  the  liability, 
must  be  so  :  whereas  if  a  tort  is  committed  by 
several ;  the  wrong,  and  the  liability,  may  be  treat- 
ed as  joint  or  several,  at  the  election  of  the  aggriev- 
ed party.  For  the  act  of  each  of  the  wrong  doers  is 
deemed  the  act  of  all ;  and  on  the  other  hand,  the 
acts  of  all  are,  in  law,  the  acts  of  each. 

(h)  Com.  Dig.  Abatement,  E.  14.     Ib.  Pleader,  2  D.  10.     Tol- 
ler on  Ex's.  448. 

(t)  Bac.  Abr.  Executors,  &c.  G.     2  Vern.  514.    Lovelass,  21. 


OF  THE  DECLARATION.  205 

^  67.     If   therefore    two  or   more    persons    bind    CHAP. 
themselves,  by   a  joint   contract  of  any  kind ;  they       iv. 

must  all,   if  living,  be  joined    as   defendants,  in  an  — 

action  for  the  breach  of  it(/c).  And  the  rule  was  defendants. 
formerly  held  to  be  the  same,  in  actions  ex  quasi  Oncon- 
contractu — as  in  actions  against  carriers,  or  other 
bailees,  for  negligence  or  breach  of  trust(l).  But  it 
is  now  held  to  be  unnecessary,  in  this  class  of  ac- 
tions, to  join,  as  defendants,  all  the  parties  who  are 
liable,  unless  the  action  is  founded  on  contract,  so 
that  to  support  it  a  contract  between  the  parties  to 
the  suit  must  be  proved.  If  the  action  is  so  found- 
ed, all  must  be  joined  as  defendants,  though  the 
action  is  in  form  ex  delicto.  This  principle  recon- 
ciles all  the  recent  cases(w).  Thus,  if  in  an  action 
against  carriers,  the  plaintiff  declares  against  them 
on  the  custom  of  the  realm,  and  alleges  a  breach  of 
duty  imposed  by  that  custom  ;  he  alleges  a  breach  of 
law,  which  needs  not  the  aid  of  a  contract  to  enforce 
it,  and  of  course  he  need  not  sue  all  the  persons  who 
are  liable  :  Otherwise,  if  he  declares  on  contract. 

§  68.  And  if  one  of  several  persons,  bound  by  a 
joint  contract,  dies ;  the  action  must  be  brought 
against  the  survivor  ;  or  if  there  be  more  than  one 

(fe)  Bac.  Abr.  Obligation,  D.  4.  5  Co.  19.  1  Saund.  154. 
(n.  1.)  291.  (n.  2.)  5  Burr.  2611.  2  Black.  Rep.  947. 

(/)  Carth.  162—3.  1  Freem.  499.  1  Saund.  291.  d.  n.  6 
T.  R.  369. 

(nt)  5  T.  R.  649.  2  N.  Rep.  365.  454.  3  East,  62.  12 
East,  89.  452.  6  M.  &  S.  385.  6  Moore,  141.  3  Brod.  & 
Bing.  54.  Vid.  6  B.  &  A.  653. 

27 


206  OF  THE  DECLARATION. 

CHAP,    survivor,  against  all  of  them(«).     For  joint  liabili- 
iv.       ties   survive    entire,    against    survivors,   as   do  joint 

— rights,  in  their  favor.     And  therefore,  the  personal 

defendants,  .representative  of  the  deceased  party  is  not  liable,  at 
law,  either  as  a  co-defendant  with  the  survivor,  or 
in  a  separate  action(o). 

§  69.  But  if  two  bind  themselves  by  contract, 
jointly  and  severally;  they  may  both  be  joined  as 
defendants  in  one  action ;  or  either,  or  each  of  them, 
may  be  sued  in  a  separate  action(j!?).  For  when 
the  contract  is  in  this  form,  the  obligation,  created 
by  it,  may  be  treated  as  either  joint  or  several,  at 
the  election  of  the  party,  who  is  entitled  to  recover 
for  the "  breach  of  it.  For  the  liability,  considered 
as  several,  is  virtually  the  same  as  if  it  had  been 
created  by  two  several  and  distinct  contracts,  for  the 
performance  of  one  and  the  same  duty.  The  plain- 
tiff is  ultimately  entitled,  however,  to  only  one  satis- 
faction in  the  whole. 

f  ^  70.  If  three  persons  bind  themselves  by  a.  joint 
and  several  contract ;  they  may  be  sued  jointly  or 
severally,  as  in  the  last  case(</)  :  But  two  of  them 
cannot  be  sued  together,  in  one  action,  while  they 

(n)  1  Saund.  291.  (n.  2.)  2  T.  R.  477—8.  6  Ib.  365.  5 
Esp.  Rep.  32.  1  Salk.  393.  Vid  4  B.  &  A.  374. 

(o)  Carth.  105.     1  East,  400.     2  Burr.  1196.     2  Vern.  99. 

(p)  Bac.  Abr.  Obligation,  D.  4.  1  Saund.  153.  (n.  1.)  291. 
e.  (n.  4.)  2  Vern.  99.  8  Mod.  166.  1  Stra.  76.  553.  Yelv.  27. 
1  Sid.  238. 

(9)  ™- 


OF  THE  DECLARATION.  207 

are  all  living,  without  the  other(r).     For  the  plain-    CHAP. 
tiff  must  treat  the  contract  as  altogether  joint,  or       iv. 

altogether  several.     An  action,  partly  joint,  and  part ; 

ly  several,  quoad  the  parties  liable,  being  unknown  defendant*, 
in  the  law.  But  in  the  case,  now  supposed,  if  the 
plaintiff  sues  two,  and  only  two  of  the  three,  in  one 
action ;  he,  by  joining  the  two,  treats  the  con- 
tract so  far  as  joint ;  while  by  not  joining  the  third, 
he  treats  it  as  several,  j 

§71.  When  two  or  more  bind  themselves  jointly 
and  severally,  if  either  of  them  dies,  his  personal  re- 
presentative is  liable  to  an  action  at  law  upon  the 
contract(s).  For  if  the  plaintiff  elects  to  sue  upon 
the  contract  as  several;  its  legal  operation,  (as  has 
been  before  stated),  is  the  same  as  if  the  parties, 
originally  bound,  had  made,  each  a  several  contract 
for  the  performance  of  the  same  duty. — When 
two  or  more  bind  themselves  severally,  and  not  oth- 
erwise, the  rule  is  of  course  the  same.  (Post,  ch, 
5,  §  114.) 

§  72.  But  in  neither  of  these  last  cases,  can  the 
executor  of  the  deceased  party  be  joined  in  an  ac- 
tion with  the  survivor^).  For  as  the  former  can 
be  subjected  at  law,  only  when  a  several  liability 
devolves  upon  him  ;  it  is  manifest  that  he  cannot  be 
liable  jointly  with  any  of  the  original  parties.  Be- 

(»•)   Hardr.  198.      Bac.  Abr.    Obligation,  D.  4.     1  Sid.  238.  2 
Ib.  12.    Cro.  Eliz.  494.  3  T.  R.  782.     1  Saund.  291.  e.  (n.  4.) 
(a)    Carth.  171.  2  Lev.  228.  2  Burr.  1196. 
(/)  Carth.  171.  2  Lev.  228.   1  Chitt.  PI.  37. 


2Q8  OF  THE  DECLARATION. 

CHAP,    sides,  a  judgment  against  the  executor  must  be  de 
iv.      bonis   testatoris ;    whereas    against    the    survivor,  it 

would  be  de  bonis  propriis  :     So  that  no  one  final 

defendants,  judgment,  (and  the  law  allows  but  one,  in  one  ac- 
tion), would  be  adapted  to  such  a  joinder  of  de- 
fendants. 

^  73.  Where  a  right,  of  action  exists  against  co- 
executors^  as  such,  all  those  of  them,  who  have  acted 
in  the  execution  of  the  trust,  must  be  joined  in  the 
action  ;  but  those,  who  have  not  administered,  may 
be  omitted(?().  For  though  the  liability  of  co-ex- 
ecutors is  joint ;  yet  a  stranger  or  creditor  is  pre- 
sumed not  to  know  who,  or  how  many  they  are, 
except  from  their  acts ;  and  is  therefore  not  bound 
to  take  notice  of  any  others,  than  those  who  ad- 
minister. 

in  tort.  ^  74.  If  several  persons  join  in  committing  a 

trespass,  or  tort  of  any  kind  ;  the  party  injured  may 
generally,  at  his  election,  sue  them  all  jointly — or 
each,  or  either  of  them,  in  a  several  action — or  any 
number  of  them,  less  than  the  whole,  together (v). 
For  torts,  inwhich  several  join,  may  be  considered, 

Ante,  §  66.  in  regard  to  the  wrong-doers,  either  as  wholly  joint, 
or  wholly  several — or  as  joint  in  respect  to  part  of 
them,  and  several,  as  to  the  others  :  Since  the  act 
of  any  one  of  the  wrong-doers  may  be  regarded  in 

(u)  Off.  Ex.  95.  1  Lev.  161.  3  T.  R.  557.  1  Sid.  242.  Tol- 
ler on  Ex.  471. 

(v)  Bac.  Abr.  Pleas,  &c.  B.  2.  Ib.  Actions  in  Gen.  B.  Carth. 
171.  294.  361.  5  T.  R.  649.  Com.  Dig.  Abatement,  F.  8.  6 
Taunt.  29. 


OF  THE  DECLARATION.  209 

law,  either  as  his  own  sole  act,  or  as  the  act  of  ei-    CHAP. 
ther,  or  of  all,  or  of  any  number  of  them.  iv. 

^75.  In  general  also,  if  several  are  sued,  as  for  a  defendants. 
joint  tort ;    one  or  more  of  them  may  be  convicted, 
and  subjected  in  damages,  although  others  of  them  be 
acquitted(V). 

§  76.  To  the  general  rule,  that  joint  wrong-doers 
are  suable  severally,  as  well  as  jointly,  there  is  an 
exception,  where  a  personal  action  ex  delicto  con- 
cerns, or  arises  out  of,  real  property  held  by  two  or 
more  persons  together.  Hence,  if  one  of  two  joint 
tenants,  parceners,  or  tenants  in  common,  is  sued 
alone,  for  not  setting  out  tithes  accruing  from  the 
land  held  by  both  ;  or  for  the  neglect  of  any  other 
duty,  arising  from  their  holding  together  in  common ; 
the  non-joinder  of  the  other  tenant  is  pleadable  in 
abatement(x).  The  reason  of  the  rule  probably  is, 
that  in  every  such  suit,  the  rights  and  interest  of  both 
tenants  are  necessarily  in  question  :  A  reason  not 
applicable  to  cases,  in  which  a  tort,  committed  by 
several,  does  not  arise  out  of,  or  concern  any  joint  or 
common  estate  of  their  own. 

§  77.  Two  persons  are  not  suable  in  one  ac- 
tion, for  distinct  torts  committed  by  them  several- 
ly, against  one  and  the  same  person  :  There  being, 

(to)  1  Saund.  291.  d.  (n.  4.)      1  Salk.  32.     6  T.  R.  766. 

(ar)  5  T.  R.  651.  2  Black.  Com.  182.  1  Saund.  291.  e.  (n. 
4.)  Com.  Dig.  Abatement,  F.  6.  Vid.  14  Johns.  R.  426.  4 
Pick.  308.  10  Mass.  R.  377-9. 


OF  THE  DECLARATION. 

in  such  a  case,  no  joint  wrong(?/).  Thus,  if  A.  and 
B.  at  the  same  time  and  place,  utter  the  same  slan- 
derous words  concerning  C.  ;  the  latter  cannot,  for 
this  cause,  join  them  as  defendants  in  one  ac- 
tion^) :  For  the  act  of  speaking  cannot  be  a  joint 
act. 

^78.  But  two  or  more  may  be  joined  as  defend- 
ants, in  an  action  for  publishing  a  libel(a)  :  This 
being  an  act,  which  any  number  of  persons,  may  com- 
mit jointly. 

The  same  rule  applies,  and  for  the  same  reason, 
to  actions  for  malicious  prosecution(b-).  And  in  this, 
as  also  in  the  last  case,  any  one  of  the  wrong-doers 
may  be  sued  alone  ;  or  the  whole,  or  any  number  of 
them,  may  be  joined  in  one  action,  as  in  other  cases 
of  joint  wrongs. 

joinder  of         k  79.     It   is   laid    down  as  a  general  rule  of  the 

causes  of  3  ° 

action.  common  law,  that  where  several  causes  of  action, 
of  the  same  nature,  exist  between  the  same  parties, 
all  accruing  to  the  plaintiff  in  the  same  right,  and 
against  the  defendant  in  the  same  character  or  ca- 
pacity, they  may  all  be  joined,  by  several  counts,  in 

(y)  Bull.  N.  P.  5.  2  Saund.  117.  a.  (n.  2.)  1  Bulstr.  5.  Esp. 
Dig.  504.  Bac.  Abr.  Pleas,  &c.  B.  2.  Cro.  Jac.  647.  Palm. 
313. 

(*)  lid. 

(a)  2  T.  R.  199.     2  Burr.  985.     2  East,  426. 

(6)  2  Saund.  117.  a.  (n.  2.)  Bac.  Abr.  Pleas,  &c.  B.  2.  Ib. 
Actions  in  Gen.  B.  Latch,  262.  Bull.  N.  P.  5.  Vid.  17  Mass. 
R.  182.  Hammond  on  Parties,  85.  86. 


OF  THE  DECLARATION.  211 

one   declaration(c).     For    there  is    no   principle   of  CHAP. 
law,  limiting  a  suit  to  a  single  cause  of  action  ;  and      iv. 

where  several   rights  of  recovery  can  be  enforced,  as 

well  by  one  action  as  by  several,  a  joinder  of  them  calTsesTf 
is  advantageous   to  both  parties,  and  favored   by  the  ac 
policy  of   the    law.     By  causes   of  action  '  of   the 
same  nature',  are  here   meant  such   as   require,    at  Ante,  §  ss. 
common  law,  the  same  judgment ;  viz.  a  capiatur,QT 
a  miser icordia. 

§  80.  The  meaning  of  the  above  general  rule 
then  is,  that  where  several  distinct  causes  of  action, 
existing  between  the  same  parties,  and  accruing  in 
the  manner  mentioned  in  the  rule,  all  require,  at 
common  law,  either  the  judgment  of  capiatur,  or 
that  of  misericordici)  they  may  all  be  joined  in  one 
declaration^/). 

^81.  If  therefore  A.  has  several  causes  of  ac- 
tion against  B.,  arising  upon  several  bonds — or 
upon  several  covenants,  though  contained  in  several 
different  deeds — or  upon  several  different  promises, 
even  though  some  of  them  be  in  writing,  and  others . 
not ;  all  the  demands,  in  each  of  these  cases  re- 
spectively, (if  they  accrue  in  the  manner  before 
mentioned),  may  be  joined  by  as  many  different 
counts,  in  one  declaratiori(e).  For  they  all  require, 

(c)  Com  Dig.  Action,  G.     8  Co.  87.  b.      1  Wils.  248.     2  Ib. 
319.     Bac.  Abr.  Pleas,  &c.  B.  3.     Comb.  244. 

(d)  lid. 

(e)Com.  Dig.  Action,  G.  Bac.  Abr.  Pleas,  &c.  B.  3.  Actions 
in  Gen.  C.  1  T.  R.  276.  2  Wils.  319.  1  Ib.  252.  2  Saund. 
117.  c.  1  Vent.  366. 


212  OF  THE  DECLARATION. 

CHAP,  at  common  law,  the  same  judgment  :  viz.  a  miseri- 

iv.  cordia.     It  may  be  added,  that  the  several  rights  of 

"~ action,   in    each   of   the    cases,    now   supposed,    all 

Joinder  of  .  7    . 

causes  of  require  the  same  general  issue. 

*»f**i^M  -^  ^ 


action. 


^  82.  In  the  same  manner,  several  trespasses — 
as  assault  and  battery,  false  imprisonment,  and  tres- 
passes upon  property,  either  real  or  personal — may 
all  be  joined  (/).  For  all  the  several  causes  of  ac- 
tion require,  at  common  law,  the  same  judgment, 
Ante,  §  ss.  (viz.  a  capiatur) ;  and  the  same  general  issue,  (not 
guilty),  is  adapted  to  all  of  them. 

^  83.  Upon  the  same  principle,  several  trespas- 
ses on  the  case  ex  delicto — as  slander,  trover,  mali- 
cious prosecution,  fraud,  breach  of  trust  by  bailees 
or  agents,  nuisance,  disturbance,  &c. — may  all  be 
joined^).  For  all  these  require  the  judgment  of 
misericordia,  at  common  law ;  and  not  guilty  is  the 
proper  general  issue  to  all  of  them. 

^  84.  It  is  not  indispensable,  however,  in  order 
to  justify  the  joinder  of  different  causes  of  action, 
that  they  should  all  require  the  same  general  issue  : 
In  other  words,  the  fact  that  they  require  different 
general  issues  is,  per  se,  no  objection  to  their  join- 
der; although,  as  will  presently  appear),  the  fact 

(/)  8  Co.  87.  b.  2  Sauna.  117.  b.  (n.  2.)  6  Cranch,  226. 
Bac.  Abr.  Pleas,  &c.  B.  3.  Com.  Dig.  Action,  G.  4.  Bac.  Abr. 
Actions  in  Gen.  C. 

(g)  Com.  Dig.  Action,  G.  1  Wils.  252.  2  Ib.  319.  3  Ib. 
349.  456.  Hob.  6.  Cowp.  230.  Doug.  678.  3  East,  70.  1 
T.  R.  274.  277. 


OF  THE  DECLARATION. 


21$ 

of  their  requiring  different  species  or  forms  of  action,    CHAP. 
is  so. 


Hence,  debt  on  judgment  —  debt  on  specialty  — 
and  debt  on  simple  contract  —  may  all  be  joined  in 
one  action  (/t)  ;  although  the  general  issue,  in  the 
first  case,  is  mil  tiel  record  —  in  the  second,  non  est 
factum  —  and  in  the  third,  nil  debet.  For  the  same 
judgment,  (a  misericordia)  being  adapted  to  all  the 
three  rights  of  action  ;  their  joinder  is  warranted  by 
the  express  terms  of  the  first  general  rule,  (Ante,  ^ 
79)  —  to  which  the  difference  in  the  pleas  is  not  con- 
sidered as  affording  sufficient  ground  for  an  excep- 
tion. 

^  85.  Upon  the  same  principle,  debt  and  detinue 
may  be  joined  in  one  action(t)  ;  although  they  re- 
quire different  general  issues.  For  not  only  is  the 
judgment,  at  common  law,  the  same  in  both  ;  but 
the  actions  of  debt  and  detinue  are  essentially  the 
same  in  character  :  The  only  material  difference 
being,  that  one  is  brought  for  a  sum  of  money,  and 
the  other  for  the  recovery  of  specific  chattels(G). 

(h)  1  Vent.  366.  Cro.  Car.  316.  2  Saund.  117.  b.  (n.  2.) 
Bac.  Abr.  Pleas,  &c.  B.  3.  1  Wils.  252.  1  T.  R.  276.  13 
Johns.  R.  462. 

(•)  Bac.  Abr.  Pleas,  &c.  B.  3.  5  Mod.  92.  2  Saund.  117. 
b.  (n.  2.)  1  .Wils.  252. 

(6)  Some  doubt  has  been  expressed,  of  the  original  correctness 
of  the  rule  allowing  debt  and  detinue  to  be  joined  in  one  action.  (2 
Saund.  117.  b.  n.  2.)     But  the  rule  itself  is  well  established   by 
28 


214,  OF  THE  DECLARATION. 

§  86.  On  the  other  hand,  where  several  causes  of 
action  require  different  judgments,  at  common  law 
— as  where  the  judgment  of  capiatur  is  adapted  to 
one  of  them,  and  a  misericordia  to  the  other — the 
rule  is  universal,  that  they  cannot  be  joined  in  one 
action(/c).  For  there  can  be  but  one  judgment 
quod  recuperet,  in  one  action ;  and  if  such  causes  of 
action  were  joined,  no  one  judgment,  known  to  the 
law,  would  be  adapted  to  all  of  them. 

§  87.  For  this  reason,  a  count  in  trespass  for  an 
injury  either  to  person  or  to  property,  can  never  be 
joined  with  trespass  on  the  case,  even  when  the  lat- 
ter arises  ex  delicto(l).  Thus  assault  and  battery, 
false  imprisonment,  or  trespass  upon  property  of 
any  kind,  cannot  be  joined  with  trover,  slander, 
fraud,  malicious  prosecution,  or  any  other  wrong 
unaccompanied  with  force(m).  For  though  all 
these  causes  of  action  require  the  same  general  issue ; 
yet  trespass  and  case  require,  at  common  law,  differ- 
ent judgments — the  former  a  capiatur;  the  latter  a 
misericordia. 

^  88.  Trespass  can,  in  no  instance,  be  joined  in 
one  action  with  any  kind  of  contract(n).  For  such 

(fc)  Gilb.  H.  C.  P.  7.  Com.  Dig.  Action,  G.  2  Saund.  117. 
b.  (n.2.)  1  Salk.  10. 

(/)  Bac.  Abr.  Actions  in  Gen.  C.  1  Ld.  Ray.  273-4.  2 
Saund.  117.  e.  (n.2.) 

(w)  lid.  (n)  lid. 


authority  ;   and  from  the  reasons  suggested  in  the  text,   it  would 
seem  that  no  general  principle  is  violated  by  it. 


OF  THE  DECLARATION.  215 

a  joinder  would    require,  not  only  different  judg-  CHAP. 

ments,   at  common    law,  but  also  different  general  iv. 

issues.  


Joinder  of 
causes  of 


§  89.  And  the  general  rule  (Ante,  §  79)  that 
where  several  causes  of  action,  all  require  the  same 
judgment,  at  common  law,  they  may  all  be  joined  in 
one  declaration,  is  not  universally  true.  For  a  join- 
der of  different  demands  is  never  allowed,  where  it 
would  occasion  the  blending  of  different  forms  or 
species  of  action,  even  though  the  same  judgment 
would  be  adapted  to  all  of  them. 

§  90.  And  therefore,  debt,  covenant  broken,  ac- 
count, and  assumpsit,  cannot  be  joined  in  one  action, 
nor  can  either  of  them,  it  seems,  be  joined  with  any 
of  the  others — although  they  are  all  founded  on 
contract,  and  all  require  the  same  judgment,  at  com- 
mon law :  viz.  a  misericordia(o).  For  as,  (with 
the  exception  of  the  two  first),  they  require  different 
general  issues ;  and  more  especially,  as  the  forms  of 
action  adapted  to  them  are  essentially  different ; 
the  joinder  of  them,  or  of  any  of  them,  would  tend 
to  confusion  and  perplexity  in  the  administration  of 
justice. 

§  91.  A  fortiori,  tort  of  any  kind,  though  unac- 
companied with  force,  (as  trespass  on  the  case,  ex 
delicto),  can  never  be  joined  with  any  separate  de- 

(o)  Bac.  Abr.  Actions  in  Gen.  C.     1  Chitt.  PI.  199. 


21(3  OF  THE  DECLARATION. 

CHAP,  mand  founded  on  contract*(p).  Thus  trover,  slander, 
iv.  fee.  can  ii8  ver  be  joined  with  debt,  covenant  broken, 
account,  or  assumpsit  —  although  the  judgment  of 
misencordia  is,  at  common  law,  adapted  to  all  of 
them(^).  For  these  two  classes  of  actions  are  differ- 
ent from  each  other,  not  only  in  form  and  species, 
like  those  last  mentioned  ;  but  genetically  different. 

§  92.  It  has  been  said,  however,  to  be  a  univer- 
sal rule,  that  when  several  causes  of  action,  accru- 
ing between  the  sa/me  parties,  and  in  the  same  ca- 
pacities, all  require,  not  only  the  same  judgment,  at 
common  law,  but  also  the  same  general  issue,  they 
may  be  joined  in  one  action  (r).  That  this  position 
is  generally  true,  there  can  be  no  doubt  —  as  is  man- 
ifest from  various  examples  already  given  :  But  its 
universality  appears  at  least  questionable.  For  it 
seems  agreed  that  debt  on  bond,  and  covenant  broken, 
cannot  be  joined  (ante,  §  90);  though  the  same  judg- 
ment, at  common  law,  and  the  same  general  issue, 
are  common  to  both  of  them.  And  in  tort,  quaere, 
whether  an  English  ejectment  can  be  joined  with  any 
count  in  simple  trespass  ?(s). 

§  93.  But  distinct  causes  of  action,  though  of 
the  same  nature,  and  between  the  same  parties, 
cannot  be  joined,  unless  they  all  accrue  to  the  plain- 

(p)  1  Vent.  366.  Bac.  Abr.  Actions  in  Gen.  C.  Willes,  US. 
1  T.  R.  276—7.  Caith.  189.  3  Wils.  354.  6  East,  335. 

(9)  lid. 

(r)  1  T.  R.  276.  &  vid.  2  Saund.  117.  c.  (n.  2.) 
(s)  Bac.  Abr.  Actions  in  Gen.  C.     Thel.  Dig.  191.     Hob.  249. 
1  Brownl.  235. 

*  Note  the  case  of  debt  and  detinue,  s.  85. 


OF  THE  DECLARATION.  217 

tiff  in  one  and  the  same   right,  and  against  the  de-    CHAP. 
fendant  in  one  and  the  same  capacity.     And   there-       iv. 
fore  an  executor  cannot  join  a  promise,  made  to  his  

,  y   .  ?/*     •       i   •  T       Joinder  of 

testator,  with  one  made  to  himself,  in  his  own  indi-  causes  of 
vidual  capacity(V)  :  The  principal  reason  of  which 
is,  that  on  the  finding  of  entire  damages,  it  would 
not  appear  from  the  record,  how  much  of  the  amount 
found  was  assessed  as  assets,  in  right  of  the  testator, 
and  how  much,  in  the  plaintiffs  individual  right. 
Indeed  the  two  claims,  accruing  in  these  two  differ- 
ent rights,  belong  in  effect  to  different  persons.  An- 
other objection,  indeed,  to  such  a  joinder  is,  that  the 
rule  in  regard  to  costs,  on  the  two  counts,  would  be 
different  in  the  event  of  the  suit's  failing  :  An  ex- 
ecutor, when  suing  as  such,  and  solely  in  right  of  his 
testator,  not  being  liable  to  costs.  But  this  last 
consideration  seems  not  now  to  be  regarded  as  deci- 
sive^). 

§  94.  The  joinder  supposed,  in  the  example  last 
given,  is  not  termed  a  misjoinder  of  causes  of  action, 
(for  these  are  of  precisely  the  same  nature  in  both 
counts) ;  but  a  misjoinder  of  counts.  In  strictness, 
however,  it  seems  most  to  resemble  a  misjoinder  of 
plaintiffs  :  The  two  different  capacities,  in  which  the 
plaintiff  sues,  being  analogous  to  the  joinder,  as 
plaintiffs,  of  two  different  persons,  having  several 
distinct  rights. — In  the  application  of  the  above 

(0  2  Saund.   117.  d.     1  Salk.  10.     1  T.  R.  489.     3  Ib.   659. 
4  Ib.  277.     1  Wils.  171.     3  Bos.  &  R  7.     2  Stra.  1271. 
(u)  6  East,  411.   412. 


218  OF  THE  DECLARATION. 

CHAP.    ru^eJ  there  has  been  some  diversity  of  opinion,  and 
iv.       consequent  confusion  in  the  adjudged  cases(v). 

causes^         §  95.     It  appears  at   length,  however,  to  be  es- 

action.'  .     . 

tabhshed,  notwithstanding  some  opinions  to  the 
contrary(w),  that  where  a  declaration  by  an  execu- 
tor or  administrator,  consists  of  several  counts, 
which  in  their  own  nature  admit  of  a  joinder — if 
the  whole  avails  of  a  recovery  upon  all  of  them 
would  be  assets  in  his  hands  ;  the  counts,  (so  far  as 
depends  upon  the  capacity  in  which  the  plaintiff 
sues),  are  well  joined(V) :  Because,  in  every  such 
case,  the  causes  of  action,  laid  in  the  several  counts, 
all  accrue  to  the  plaintiff  in  one  and  the  same 
right — that  of  his  testator,  or  intestate. 

§  96.  On  the  other  hand,  different  counts, 
charging  the  defendant  in  two  different  capacities, 
cannot  be  joined  in  one  declaration.  And  therefore, 
a  demand  against  an  executor  or  administrator,  as 
such,  (i.  e.  charging  him  for  any  duty  of  his  testator, 
or  intestate),  cannot  be  joined  with  another,  accru- 
ing against  him  in  his  own  personal  capacity(y). 
Thus,  in  an  action  against  an  executor  or  adminis- 
trator, a  count  on  a  bond  or  promise  made  by  his 

(«)  6  East,  409.  410.  411.  2  Saund.  117.  c.  d.  (n.  2.)  1 
Wils.  172. 

(w)  2  Saund.  117.  d.  (n.  2.)  &  vid.    7  T.  R.  358—9. 

(ar)  6  East,  405.  3  Ib.  104.  5  Ib.  150.  2  Lev.  165.  3  Ib. 
60.  1  T.  R.  487.  3  Ib.  659.  660.  4  Ib.  281.  2  Saund.  117. 
d.  (n.  2.)  208.  6  Taunt.  453.  5  Price,  412.  7  Ib.  591. 

(T/)  2  Saund.  117.  d.  (n.  2.)  Hob.  88.  &  nolis  Williams.  2 
Lev.  228.  4  T.  R.  347.  2  Bos.  &  P.  424.  1  Chitt.  PI.  205. 
Archb.  Civ.  PI.  (Amer.  ed.)  175. 


OF  THE  DECLARATION.  219 

testator,  or   intestate,  cannot  be  joined  with  a  count    CHAP. 
on  a  bond  or  promise  made  by  himself  in  his  own       iv. 
personal  capacity.     For  the  judgment,  required  on  •  -  • 
the  first  count,  would  be    de    bonis   testatoris,  &c.  Caunsesrof 
and  that  on  the  second,  de  bonis  propriis.     Such  a  a( 
joinder,    however,  would    not    be    a   misjoinder   of 
causes  of  action,  (these  being  both  of  the  same  na- 
ture) ;    but  a  misjoinder  of  counts. 

§97.  The  joinder  of  causes  of  action,  or  of  P°st»  c-  8»  § 
counts,  which  the  law  does  not  allow  to  be  joined, 
is  fatal  to  the  declaration,  not  only  on  demurrer, 
but  on  motion  in  arrest  of  judgment  after  verdict, 
or  on  writ  of  error(r).  For  the  joinder  might,  if 
sanctioned,  require,  in  the  one  case,  two  final  judg- 
ments of  different  kinds,  and  in  the  other,  two 
of  the  same  kind,  in  one  action  :  Whereas  the  law 
allows  but  one  such  judgment,  in  any  civil  action. 
But  if,  where  counts  are  misjoined,  a  verdict  is 
found  for  the  plaintiff  on  one  count,  or  on  two  or 
more  counts  that  are  well  joined,  and  for  the  de- 
fendant on  the  other,  or  others  ;  the  misjoinder  is 
cured  (zz). 


§  98.  In  connexion  with  the  last  rule,  it   is  pro-  Misj 

of  causes  of 

per  to  remark,  that  misjoinder  of  causes  of  action,  or  action- 

(z)  Bac.  Abr.  Pleas,  &c.  B.  3.  Mo.  419.  1  T.  R.  274.  1 
H.  Black.  108.  2  Bos.  &  P.  424.  1  Salk.  10.  Carth.  436.  7 
Taunt.  581. 

(zz)  2  M.  &  S.  533—  overruling  3  Lev.  99.  2  Ib.  101.  T. 
Ray.  233.  Vid.  11  Mod.  196.  266.  1  Brownl.  235.  Hardr. 
166.  3  T.  R.  433. 


220  OF  THE  DECLARATION. 

CHAP,    counts,  which  is  a  radical  fault,  is  essentially  different 
iv.       from  duplicity,  which  is  but  matter  of  form  : 

Misjoinder  of  causes  of  action,  or  counts,  consists 
in  joining,  in  different  counts  in  one  declaration, 
several  different  demands — which  the  law  does  not 
permit  to  be  joined — to  enforce  several  distinct,  sub- 
stantive rights  of  recovery  :  As,  where  a  declara- 
tion joins  a  count  in  trespass  with  another  in  case, 
for  distinct  wrongs — or  one  count  in  tort,  with  ano- 
ther in  contract. 

%  99.  Duplicity  in  a  declaration  consists  in  join- 
ing, in  one  and  the  same  count,  different  grounds  of 
action,  of  different  natures,  or  of  the  same  nature, 
to  enforce  only  a  single  right  of  recovery.  This  is  a 
fault  in  pleading,  only  because  it  tends  to  useless  pro- 
lixity and  confusion,  and  is  therefore  only  a  fault  in 
form. 

Thus  where  the  plaintiff  declared,  in  one  count, 
that  whereas  he  had  bailed  to  the  defendant  a  horse, 
to  be  ridden  from  L.  to  E.,  and  there  to  be  safely 
redelivered  to  the  plaintiff;  the  defendant,  intend- 
ing to  deceive  the  plaintiff,  rode  the  horse  from  L.  to 
E.,  and  from  E.  to  L.  again ;  and  by  riding  so  far, 
abused  the  horse,  fee. ;  and  also,  that  the  defendant 
had  refused  to  redeliver  the  horse  on  demand,  and 
converted  him  to  his  own  use — it  was  held  that  the 
declaration  was  demurrable,  for  duplicity(a).  For 
the  declaration,  in  one  count,  stated  two  or  three 

(a)  Cro.  Car.  20.     Bac.  Abr.  Actions  in  Gen.  C. 


OF   THE  DECLARATION.  221 

distinct  grounds  of  action,  sounding  in  both  contract    CHAP. 
and  tort;  though  the  plaintiff's  loss,  or  damage  sus-       iv. 

tained,  entitled  him   to  only  a  single,  entire  right  of 

recovery — which  he  might  have  enforced,  by  de- 
claring in  only  one  form  of  action. 

^  100.  So  also,  if  the  obligee  in  a  penal  bond 
declares  upon  it  specially,  by  setting  out  the  condi- 
tion, and  assigns  more  than  one  breach ;  the  de- 
claration is,  by  the  common  law,  double(b).  For 
by  the  common  law,  one  breach  works  a  forfeiture 
of  the  whole  penalty ;  which  is  all  that  could  be 
forfeited  by  any  number  of  breaches. 

$}   101.  When  a  declaration  is  ill,  for  mis  joinder  How  , 

amenable. 

of  causes  of  action,  the  plaintiff  may,  with  leave  of 
the  court,  amend  it  on  payment  of  costs,  by  striking 
out  one  or  more  of  the  counts,  and  thus  leaving 
upon  the  record  but  one  count,  or  such  only  as  are 
rightly  joined(c).  And  if  the  declaration  has  not 
been  demurred  to,  he  may  also  cure  the  mistake,  by 
entering  a  nolle  prosequi  upon  one  or  more  of  the 
counts(rf). 

§  102.  But  it  has  been  several  times  held,  that 
after  demurrer  to  a  declaration,  for  such  a  misjoin- 
der, the  plaintiff  cannot  cure  the  mistake  by  enter- 

(6)  Com.  Dig.  Pleader,  C.  33.  2  Co.  4.  a.  1  Saund.  58.  (n. 
1.)  2  Vent.  198. 

(c)  4  T.  R.  347-8.  360. 

(d)  lid.   1  Saund.  207.  c.  (n.  2.)  285.  (n.  5.)    1  Chitt.  PI.  206. 

29 


222  OF  THE  DECLARATION. 

CHAP.  ing  a  nolle  prosequi  upon  any  of  the  counts  (e)  : 
iv.  Since  to  permit  this,  would  enable  him,  by  his  own 

— — —  act,  and  without  paying  costs,  to  defeat  a  de- 
murrer well  taken,  and  for  a  sufficient  and  sub- 
stantial cause. 

datoaof  §  103.  Where  one  brings  several  suits,  upon  se- 
veral distinct  demands,  which  might  all  have  been 
joined  in  one  action,  the  count  may,  upon  the  de- 
fendant's motion,  compel  a  consolidation  of  them — 
that  is  to  say,  may  order  all  the  declarations  in  the 
several  actions,  to  be  inserted,  as  so  many  counts,  in 
one  declaration^)  :  It  being  unreasonable  that  the 
defendant  should  be  harassed  with  several  suits, 
where  one  would  answer  all  the  purposes  of  justice. 

The  interposition  of  the  court,  for  this  purpose,  is 
however  discretionary(/i)  :  An  order  for  consolidat- 
ing actions  being  only  a  matter  of  practice.  But 
when  a  consolidation  is  ordered,  the  costs  of  the 
application  are,  regularly,  to  be  paid  by  the  plain- 
tiff^). For  the  institution  of  several  suits,  where 
all  the  ends  of  justice  might  have  been  attained  by 
one,  is  considered  as  vexatious  and  oppressive. 

(e)  4  T.  R.  347.  360.  1  H.  Black.  108.  1  Saund.  207.  c.  (n. 
2.)  Cont.  1  Bos.  &  P.  157.  2  Ib.  77. 

(g)  Bac.  Abr.  Pleas,  &c.  B.  3.  Comb.  244.  2  T.  R.  639. 
Com.  Dig.  Action,  I. 

(A)   2  Stra.  1149.  1178.  Com.  Dig.  Action*  I. 

(»')  2  T.  R.  639.  Tidd,  556. 


AVOVVRIES  AND  COGNIZANCES.  223 

CHAP. 
IV. 

Of  Avowries  and  Cognizances. 

^  104.  In  connexion  with  the  declaration,  it  is 
proper  to  present  a  brief  outline  of  avowries  and 
cognizances,  which  are  pleadings  on  the  part  of  the 
defendant  in  replevin,  and  are  peculiar  to  that  ac- 
tion^). These  pleas  are  introduced  in  this  con- 
nexion, because  they  both  partake  of  the  nature,  as 
well  of  declarations,  as  of  special  pleas  in  bar(T). 
For  they  not  only  justify,  by  way  of  defence,  the 
taking  of  the  goods  or  cattle,  the  taking  and  holding 
of  which,  by  the  defendant,  is  complained  of  by  the 
plaintiff  in  replevin  ;  but  also  demand  a  judgment 
quod  recuperet,  viz.  for  the  return  of  the  goods,  &c. 
to  the  defendant — or  as  the  case  may  be,  for 
damages — for  the  security  or  satisfaction  of  some 
claim,  asserted  by  the  defendant  against  the  plain- 
tiff; as  rent  due  to  the  former,  or  damage  done  to 
him,  by  the  cattle  distrained  and  replevied(m). 

§  105.  Avowries  and  cognizances  are  substantial- 
ly the  same,  and  differ  from  each  other  only  in 
name,  and  form.  When  the  defendant  in  replevin 
justifies,  and  claims  a  return  of  the  goods,  &c.  or 
damages,  in  his  own  right,  or  in  that  of  his  wife,  he 
begins  his  pleading,  by  averring  that  he  '  well  avows 

(/c)  3  Black.  Com.  150.     Lawes'  PI.  78. 
(/)  lid.  2  Saund.  195.  Esp.  Dig.  360.  Bac.  Abr.  Replevin,  A.  K. 
(HI)  Bac.  Abr.    Replevin,  A.  K.      3  Black.  Com.  150.  Lawes' 
°1.  78. 


224 


AVOWRIES  AND  COGNIZANCES. 


CHAP.    tne  taking'  of  the  goods,  &c.  and   then  proceeds  to 
iv.       state  his  claim — as  rent  due,  damage  done   by  the 

plaintiff's  cattle,  &c.(V)  :     But  when  he  justifies,  as 

&c?wr  bailiff  or  servant  to  another,  and  in  the  latter's  right, 
he  begins  by  saying  that  he  '  well  acknowledges  the 
taking,'  &c.  ;  and  then  proceeds,  as  in  the  former 
case(o).  In  the  case  first  stated,  the  plea  is  called 
an  avowry ;  in  the  latter,  a  cognizance  :  These  tw;o 
denominations  being  derived,  it  seems,  from  the  terms, 
in  which  the  pleas  respectively  commence. 

^  106.  When  the  defence  in  replevin  consists 
of  matter  of  justification  only,  without  claiming  a 
judgment  quod  recuperet,  an  avowry,  or  cognizance, 
is  not  only  unnecessary,  but  improper  ;  since  a  sim- 
ple justification  (as  in  trespass,  &c.)  is,  in  such  a 
case,  all  that  the  nature  of  the  defence  can  re- 
quire (p). 

But  when  the  defendant  makes  an  avowry,  or 
cognizance,  it  partakes  of  the  nature  of  a  declaration, 
and  both  parties  are  virtually  actors,  or  plaintiffs. 
An  avowry,  &c.  is  of  the  nature  of  a  declaration, 
not  only  in  the  recovery  which  it  demands  ;  but  also 
in  this — that  it  may  be  the  subject  of  a  plea  in 
abatement,  and  is  not  required  to  conclude  with  a 
verification(q). 

(n)  2  Chitt.  PI.  508.  513.     3  Black.  Com.  150. 

(o)  2  Chitt.  PI.  509.  513.     3  Black.  Com.  150. 

(p)  Com.  Dig.  Pleader,  3  K.  12.     Lawes'  PI.  86. 

(g)  Bac.  Abr.  Replevin,  A.  1  Salk.  94.  2  Wils.  117.  Lawes' 
PI.  82.  Cro.  Eliz.  530.  798.  Carth.  122.  6  Mod.  103.  Yelv. 
148-9. 


AVOWRIES  AND  COGNIZANCES.  225 

^  107.      Under  the  statute  4  Ann.  c.  16,  §  4,  al-    CHAP. 
lowing  a  defendant  to  plead  several  different  pleas       iv. 

to  one  declaration,   the  defendant  in  replevin  may  

plead  several  avowries,  &c ;  and  on  the  other  hand,  &c?wnes' 
the  plaintiff  in  replevin  may  plead  several  pleas  in  Post,  c.  s, 
bar  of  the  avowry,  &c.(r). 

It  is  unnecessary,  however,  to  treat  of  avowries, 
in  the  present  connexion,  in  detail:  Since,  as  de- 
clarations, they  are  governed  by  the  same  general 
rules  as  other  declarations,  in  personal  actions ; 
and  as  special  pleas  in  bar,  must  have  the  same 
properties  or  requisites,  as  other  pleas  of  that  class. 

(r)  Lawes'  PI.  82. 


CHAPTER  V. 


OF    DILATORY    PLEAS. 

CHAP.         SECTION    1.     DILATORY  pleas  as  usually  distin- 
v.        guished,  for  the  purpose  of  settling  the  order  of  plead- 
ing.  are. 

Vid.  ch.  2,  § 
34. 

I.  To  the  jurisdiction  of  the  court: 
II.  To  the  disability  of  the  person, 

1.  Of  the  plaintiff,  and 

2.  Of  the  defendant : 

III.  To  the  count,  or  declaration  : 

IV.  To  the  writ — viz. 

1.  To  the  form  of  it,  and 

2.  To  the  action  of  it(s). — But  this  divi- 
sion of  pleas  to  the  writ  is  seldom  if  at  all  regard- 
ed, it  seems,  in  modern  practice. — (Vide  post,  note  to 
§  138.) 

Defendant        &  2.  Any  or  all  of  these  pleas  may  be  used,  suc- 

may  plead  V     ,       /  .-  j      ,         .   , 

two  or  more  cessivelii,  in  one  and  the  same  case,  it  pleaded  with- 

of  them.  y  \ 

in  the  time  allowed  for  dilatory  pleas  by  the  rules 

(*)  Co.  Litt.  303.     Reg.   PI.  54.     1    Tidd,  572.     Bac.  Abr. 
Pleas,  &c.  A.     3  Inst.  Cler.  5.     Lawes'  PI.  37. 


OF  DILATORY  PLEAS.  227 

of  practice(J).  This  rule,  however,  means  only,  CHAP. 
that  when  a  dilatory  plea  has  been  overruled,  the  v. 
defendant  is  still  at  liberty  to  plead,  (within  the 
proper  time),  any  other  plea,  which,  in  the  above 
enumeration,  is  subsequent  to  that  which  has  been 
overruled.  The  rule  is,  therefore,  to  be  understood 
with  the  two  following  restrictions :  ] .  That  the 
latter  plea  be  not  repugnant  to  the  former ;  and  2. 
That  the  defendant  do  not  invert  the  established  or- 
der of  pleading — or  in  other  words,  that  the  latter 
plea  be  not  such  as  is  waved  by  the  former (u). 

§3.  But  after  any  dilatory  plea  has  been  overrul- 
ed, no  second  plea  of  the  same  kind,  or  class,  can  be 
admitted^).  If  it  were  otherwise,  dilatory  pleas 
might,  except  for  the  restrictions  imposed  by  positive 
rules  of  practice,  succeed  each  other  beyond  all  defi- 
nite limits. 


§  4.  Nor  is  the  defendant  allowed  to  plead  simul-  But  not  at 

.  .  .  _.,  the  same 

taneously,  to  the   same  thing  or  point,  two  dilatory  time,  to  the 

r  ,  .      ,        .,  •  f      i        same  point. 

pleas  of  the  same  kind,  (as  two  outlawries  of  the 
plaintiff),  or  two  of  the  same  class,  (as  outlawry 
and  alienage).  For  this  would  amount  to  duplicity, 
which  the  rules  of  pleading  forbid(w;). 

(0  Co.  Lit.  304.  a.  Carth.  8.  9.  Bac.  Abr.  Pleas,  &c.  K. 
1.  1  Tidd,  572.  Lawes'  PI.  107.  Com.  Dig.  Abatement,  I.  3.  4. 

(«)  Com.  Dig.  Abatement,  I.  4. 

(w)  Bac.  Abr.  Abatement,  M.  Ib.  Pleas,  &c.  K.  1.  Hetl.  126. 
12  Mod.  230.  Doct.  PI.  Introd.  V. 

(w)  Lawes'  PI.  108.  Com.  Dig.  Abatement,  C.  I.  3.  4.  Tidd, 
589.  3  Ld.  Ray.  183.  Bac.  Abr.  Abatement,  0. 


228  OF  DILATORY  PLEAS. 

CHAP.        §  5.  Neither  can  he  plead,  at  one  time,  two  dila- 
v.        tory  pleas  of  different  classes  or  degrees,  either  to  the 

whole,  or  to  the  same  part,  of  the  writ,  or  matter  in 

demand(x),  For  such  pleading  would  be  not  only 
double,  but  incongruous  :  Since  the  plea,  which  is 
subsequent  to  the  other  in  the  order  of  pleading, 
would  be,  as  will  presently  appear,  a  waiver  of  the 
other. 

mfeptaand  §  6.  But  the  defendant  may  plead,  at  the  same 
to  diffe^n?'  time>  tvvo  different  dilatory  pleas,  either  of  the  same 
pomts.  class,  or  of  different  classes,  to  different  points — as 
different  parts  of  the  matter  in  demand(i/).  For  as 
the  pleas  go  to  different  points,  they  do  not  consti- 
tute duplicity ;  and  for  the  same  reason,  they  are 
not  incongruous,  even  if  they  are  of  different  classes, 
unless  one  of  them  has  before  been  waived.  The 
defendant,  therefore,  may  plead  simultaneously  the 
nonjoinder  or  misjoinder  of  a  party,  as  plaintiff",  to 
one  count ;  and  the  nonjoinder  of  another  person,  as 
defendant,  or  other  matter  of  abatement,  to  the 
other. 

^  7.  He  may  also,  at  the  same  time,  plead  a  dil- 
atory plea,  as  to  part  of  the  matter  in  demand,  and 
in  bar,  as  to  the  residue  :  As  nonjoinder  of  a  party, 
to  one  of  two  counts  in  assumpsit,  and  non  as- 
sumpsit,  or  a  special  plea  in  bar,  to  the  other(z)  : 

(*)  Com.  Dig.  Abatement,  C.  I.  3.  Lawes'  PI.  108.  Co. 
Litt.  303.  a. 

(y)  Com.  Dig.  Abatement,  I.  5.     Lawes'  PI.  107. 

(z)  Lawes'  PI.  107-8.     2  Bos.  &  P.  420.      Vid.  10  Mod.  285. 


OF  DILATORY  PLEAS.  229 

Different  pleas  to  different  counts  being  virtually,    CHAP. 
as  they  appear  upon  the  record,  pleas  to  different       v. 
demands,  or  causes  of  action(l).  

&  8.    The  order  to  be  observed,  in  pleading  the  °.rder  of 

:>  dilatory 

several  dilatory  pleas  before  enumerated,  is  the  same  Pleas- 
as  that  in  which  they  are  named  in  the  enumera- 
tion ;  and  this  order  is  dictated  by  the  principle, 
that  the  pleading  of  any  one  of  the  pleas,  in  that 
enumeration,  is  a  tacit  waiver  of  those  of  the  pre- 
ceding class  or  classes.  Thus,  a  plea  of  the  second 
class  waives  those  of  the  first ;  one  of  the  third  class 
waives  those  of  the  first  and  second  ;  and.  the  same 
principle  prevails  through  the  whole  series. 

§  9.  But  as  the  only  object  of  the  foregoing  mi- 
nute division,  and  subdivision  of  dilatory  pleas,  is  to 
show  their  priorities  in  the  order  of  pleading ;  and 
as  these  priorities,  and  the  several  offices  of  dilatory 
pleas,  may  be  sufficiently  explained,  under  the  three- 
fold division,  heretofore  mentioned,  (ch.  2,  §  34)  ; 
the  latter,  as  being  the  more  simple,  will  be  still  pur- 
sued. 

&  10.     Dilatory  pleas  then,  according  to  the  di-  Kinds  of 

*  J  dilatory 

vision  under  which  they  are  now  to  be  considered,  Pleas- 
and  have  already  been  classed,  in  a  former  part  of 
this  Treatise,  are — I.    Pleas  to   the  jurisdiction  of 


(1)  In  the  States  of  Connecticut  and  Massachusetts,  it  has 
heretofore  been  customary  to  assign  any  number  of  causes  of 
abatement,  in  one  and  the  same  plea.  (Story's  PI.  59 — 60.) 

30 


230  OF  DILATORY  PLEAS. 

CHAP,    the  court :     II.  Pleas  to  the  disability  of  the  plain- 
v.       tiff :     III.  Pleas  in  abatement(a). 

§  11.  It  is  here  to  be  observed,  that  what  are 
termed  pleas  in  abatement,  in  this  threefold  division 
of  dilatory  pleas,  comprehend  all  those  which,  in 
the  more  minute  division  (ante,  §  1),  follow  pleas  to 
the  person  of  the  plaintiff'.  All  dilatory  pleas,  there- 
fore, which  go  to  the  disability  of  the  person  of  the 
defendant,  and  all  those  which  follow  that  class  of 
pleas,  in  the  latter  division,  are  here  to  be  considered 
as  pleas  in  abatement,  properly  so  called.  But  pleas 
founded  upon  a  defendant's  privilege,  exempting  him 
from  suits,  except  in  a  particular  court,  are  here 
considered  as  pleas  to  the  jurisdiction  of  the  court. 
(See  post.  §  16). 

Restriction  ^12.  Dilatory  pleas  having  been  formerly  used 
pleas.  for  the  mere  purpose  of  delay,  and  without  any 
foundation  in  fact ;  it  is  enacted,  by  the  statute  4 
Ann.  c.  16,  ^  11,  that  no  plea  of  this  class  shall  be 
received  without  affidavit  made  of  its  truth,  or  of 
some  matter,  which  shall  induce  the  court  to  believe 
it  true(6).  But  this  enactment,  though  universal  in 
its  terms,  is  applicable  only  to  pleas  alleging  extrin- 
sic matters  :  As  those,  appearing  upon  the  face  of 
the  record,  can  require  no  proof(c). 

(a)  3  Black.  Com.  301. 

(6)  Bac.  Air.  Pleas,  &c.  E,  2.     Ib.  Abatement,  0.     2  Saund. 
210.  e.     Sayer,  293.     3  WJ1S.  51. 

(c)  3  Bos.  &  P.  397.     2  Ld.  Ray.  1409.     1  Chitt.  PI.  452.   -' 


OF  PLEAS  TO  THE  JURISDICTION. 


231 


CHAP. 

I.     Of  Pleas  to  the  Jurisdiction.  v. 

§  13.  A  plea  to  the  jurisdiction  is  one  which  de- 
nies that  the  court  has  jurisdiction  of  the  cause(^). 

This  is  the  first  plea,  in  the  regular  order  of  plead-  ^'"^j^0 
ing,  on  the  part  of  the  defendant(e).     The  defend-  {j|c  ordlr"of 
ant  therefore,  if  he  would  except  to  the  jurisdiction  p!eas- 
of  the  court,   in  •  any  case   in  which   the  exception 
must   be  taken,  if  taken  at   all,  by  plea,  must  do  it 
before  he  offers  any  other  plea  :      For  in  such  a  case, 
a  plea  of  any   kind,    which   refers  to  the   court   any 
other   question  than    that  of    its    own   jurisdiction, 
(which  last  every  court  must,   from   the  necessity  of 
the  case,  decide  for  itself,  in  the  first  instance),  is  a 
tacit  admission  that  the  court  has  a  right  to  judge 
in  the  cause  ;    or  in  other  words,  that  it  has  jurisdic- 
tion :   And   thus  all  exception  to  the  jurisdiction  is 
waived  (f). 

1^  IvUMJL  *+**J<<~  UVi  , 

In  every  such  case  also,  a  plea  to  the  jurisdiction 
must,  for  a  similar  reason,  be  pleaded,  if  at  all,  be- 
fore a  general  or  even  a  special  imparlance(g).  But 
for  the  distinctions  on  this  head,  see  ch.  2,  ^  17.  18, 
19. 

§  14.     Want  of  jurisdiction   may  arise,   at  com-  Causes  of 

1  c  .   •.  ~  ,  ir  exception  to 

mon  law,  from  either  or  several  causes — as    1.  from  the  jurisdic- 
tion. 

(d)  Bac.  Abr.  Pleas,  £c.  E.  1.  2. 

(e)  Bac.  Abr.  Pleas,  &c.  A.  E.  1.  2.     Co.  Litt.  303. 
(/)  lid.     Co.  Litt.  127.  b.     Hob.  164. 

(g-)  2  Saund.  2.  (n.  2.)      Ticld,  418. 


232  OF  PLEAS  TO  ™E  JURISDICTION. 

CHAP,  what  may  properly  be  termed  privilege  of  tenure ; 
v.  under  which  head  falls  the  plea  of  ancient  demesne  : 
2.  from  some  privilege  of  the  defendant,  by  which  he 
is  exempted  from  liability  to  suits,  in  the  court  in 
which  the  action  is  brought :  3.  'from  the  cause  of 
action's  having  arisen  out  of  the  limits  of  the  court's 

«/ 

jurisdiction  :     4.  from  a  want  of  power  in  the  court 
to  take  cognizance  of  the  subject-matter  of  the  suit. 

^  15.  I.  When  land,  sued  for  in  any  of  the  supe- 
rior courts,  (as  the  King's  Bench,  Common  Pleas, 
&c.)  is  held  in  ancient  demesne,  the  defendant  may 
Ancient  de-  plead  that  fact,  to  the  jurisdiction  of  the  court(/i)  : 
Ancient  demesne  being  a  peculiar  and  privileged  spe- 
cies of  tenure,  cognizable  only  in  the  court  of  the 
manor,  of  which  the  land  so  held  is  parcel(z). 

This  plea,  I  trust,  is  unknown  to  the  laws  of  any 
of  the  United  States  :  Since  no  such  tenure  or 
court,  it  is  presumed,  exists  in  any  of  them. 

Privilege  of  §  16.  II.  If  an  attorney,  or  other  officer  of  one  of 
attorney,  ^^  superior  courts  of  Westminster,  is  sued  alone,  and 
in  his  own  individual  capacity,  in  another  court,  in 
any  action  that  the  court,  of  which  he  is  an  officer,  is 
competent  to  try ;  he  may  defeat  the  suit,  by  plead- 
ing his  privilege,  as  an  officer  of  the  court  to  which 
he  belongs(A;).  This  privilege  is  allowed,  on  the 

(fc)  Com.  Dig.  Matenent,  D.  1.  2  Leon.  190.  Sly.  273.  3 
Lev.  182. 

(t)  2  Black.  Com.  93.     3  Woodes.  12. 

(fc)  Com.  Dig.  Abatement,  E.  4.  2  Bulstr.  207.  2  Salk.  544. 
Andr.  44.  Bac.  Abr.  Abatement,  C. 


OF  PLEAS  TO  THE  JURISDICTION.  233 

presumption  that  the  constant  attendance  of  these    CHAP. 
officers,  in  their  own  courts,  is  necessary  to  the  due       v. 

administration  of  justice. — But  as  this  privilege,  al-  

so,  is  presumed  not  to  exist  in  any  of  the  United 
States ;  the  more  particular  rules  relating  to  it  are 
here  omitted. 

§  17.  III.  It  is,  in  some  cases,  a  good  plea  to  the 
jurisdiction,  that  the  cause  of  action  arose  out  oj  the 
local  limits  of  the  court's  jurisdiction ;  in  others, 
it  is  not  so.  And  on  this  head  the  following  dis- 
tinctions are  to  be  observed  : 

^18.   1.  In  courts  of  limited  jurisdiction, — i.    e.  cause  of 
courts  whose  jurisdiction  extends  only  to  causes  of  fnVout™8" 
action  actually  arising  within  certain  local  limits —  jurisdiction, 
it  is  a  good  plea  to  the  jurisdiction,  as  well  in  tran- 
sitory as  in  local  actions,  that  the  cause  of  action  did 
not  accrue  within  those  limits  (7).     Most  of  the  city 
courts,  in  the  United  States,  are  believed  to  be  thus 
limited  in  their  jurisdiction. 

In  such  cases,  however,  it  is  not  necessary  for 
the  defendant  to  plead  to  the  jurisdiction  :  Since 
the  exception  may  be  taken  under  the  general  is- 
sue(m).  For  the  legal  presumption  being  against 
the  jurisdiction  of  such  inferior  courts ;  it  is  neces- 
sary for  him,  who  sues  in  one  of  them,  to  allege  that 

(/)  Bac.  Abr.  Pleas,  &c.  E.  1.  Gilb.  H.  C.  P.  188-9.  1 
Roll.  Ab.  545-6.  Bac.  Abr.  Courts,  D.  4. 

(m)  Bac.  Abr.  Pleas,  &c.  E.  1.  1  Lill.  Ab.  366.  1  Saund. 
98.  (n.  1.)  Gilb.  H.  C.  P.  188-9.  2  Ves.  357.  6  East,  601. 


234  OF  PLEAS  T°  THE  JURISDICTION. 

CHAP,   tne  cause  °f  action  arose  within  its  jurisdiction.     If 
v.      this  allegation  is  omitted,  his  declaration  is  ill ;    and 

if  the  allegation,  being  made,  is  not  proved,  he  is 

liable  to  a  nonsuit(n). 

^19.  2.  Courts  of  general  jurisdiction,  (as  the 
Superior  Courts  of  Westminster,  in  England),  have 
cognizance  of  all  transitory  actions,  wherever  the 
cause  of  action  may  have  accrued  :  Since  all  such 
actions,  in  general,  follow  the  person  of  the  defend- 
ant^). The  same  extent  of  jurisdiction  apper- 
tains not  only  to  the  several  Superior  Courts,  (or 
highest  courts  of  ordinary  jurisdiction),  of  the  sever- 
al states,  which  compose  the  United  States ;  but  to 
various  other  courts,  of  subordinate  authority,  in  ma- 
ny of  the  states,  and  probably  in  all  of  them. 

^  20.  3.  But  it  is  a  good  exception  to  the  jurisdic- 
tion of  courts,  even  of  the  superior  class,  that  the 
cause  of  action,  when  local,  accrued  in  a  foreign 
state,  or  in  any  place  where  the  process  of  the  court 
cannot  mn(Jp). 

§  21.  Thus,  to  an  action  of  trespass  quare  clau- 
sum  fregit — or  an  action  for  rent  arrear,  against 
the  assignee  of  a  lease — or  any  other  action,  in 

(n)  2  Inst.  231.  1  Roll.  Ab.  545-6.  Bac.  Abr.  Pleas,  &c. 
E.  1.  Gilb.  H.  C.  P.  188-9. 

(o)  Com.  Dig.  Action,  N.  7.  Cowp.  161.  177-8.  344.  2  H. 
Black.  145-161.  5  T,  R.  616.  7  Tb.  243.  Ante,  ch.  3,  §  159. 

(/>)  Bac.  Abr.  Pleas,  &c.  E.  1.  Ib.  Actions  Local,  &c.  A.  1. 
2  Bl.  Rep.  1070.  4  T.  R.  503.  7  Ib.  587.  1  Stra.  646.  Ante, 
ch.  3,  §  108. 


OF  PLEAS  TO  THE  JURISDICTION.  235 

general,  arising  out  of  the  realty,  it  is  a  good  plea  to    CHAP. 
the  jurisdiction  of  a  court,  even  of  general  jurisdic-        v. 
tion,  that  the  land,  on  which  the  wrong  was  commit- 
ted, or  out  of  which  the  action  arose,  lies  in  a  for- 
eign country  or  state(ry).     And  the  same  rule  ex- 
tends to  all  local  actions,  in  general,  the  causes  of 
which  arose  in  a  foreign  state(2). — In  the  application 
of  this  rule,  in  the  United  States,  the  several  states 
are,  in  relation  to  each  other,  foreign. 

^  22.  In  an  action,  brought  for  the  recovery  of  a 
local  subject,  (as  land),  situated  in  a  foreign  country, 
or  beyond  the  reach  of  the  process  of  the  court,  a  plea 
to  the  jurisdiction  cannot,  however,  on  principle,  be  ne- 
cessary for  the  purpose  of  ousting  the  jurisdiction. 
For,  as  the  judgment,  demanded  in  such  an  action, 
being  in  rem,  would,  if  rendered,  be  utterly  nugatory 
(since  the  subject  could  not  be  reached  by  any  pro- 
cess of  the  court)  ;  the  exception  may  be  taken  in 
any  stage  of  the  proceedings(r). 

^  23.  But  in  local  actions  which  are  personal, 
and  in  which,  of  course,  the  judgment  demanded 
may  be  enforced  against  the  person,  or  goods  of  the 
defendant  (as  in  trespass  quare  clausum  fregit,  debt 
for  rent  against  the  assignee  of  a  term,  &c.) — if  the 

(?)  Com.  Dig.  Abatement,  D.  3.  1  Salk.  80.  1  Show.  191. 
Carth.  182. 

(r)  Cowp.  176.     7  T.  R.  587-8.     1  Chitt.  PL  284. 


(2)  For  the  enumeration  and  description  of  local  actions,  in  gen- 
eral, see  ante,  ch.  3,  §  105  to  §  131. 


OF  PLEAS  TO  THE  JURISDICTION. 

CHAP,  cause  of  action  accrued  in  a  foreign  state,  or  where 
v.  the  process  of  the  court  cannot  run,  it  appears  to  have 
been  formerly  deemed  necessary,  in  a  Superior  Court, 
to  plead  to  the  jurisdiction^).  And  such  is  now 
the  rule,  in  relation  to  this  class  of  local  actions,  in  the 
courts  of  Westminster,  when  the  cause  of  action  ac- 
crued in  Wales,  or  in  a  County  Palatine,  where, 
though  within  the  kingdom  of  England,  the  ordinary 
process  of  these  courts  does  not  run(Y). 

^  24.  It  seems  now,  however,  that  where  a  local 
action,  not  requiring  a  judgment  in  rem,  (as  trespass 
quare  clausum  fregit,  for  an  injury  to  land  lying  in  a 
foreign  country),  is  brought,  even  in  a  Superior 
Court,  exception  may  be  taken  to  the  jurisdiction, 
under  the  general  issue(u). 

§  25.  4.  It  is  a  fatal  objection  to  the  jurisdiction 
of  any  court,  that  it  has  not  cognizance  of  the  sub- 
ject-matter of  the  suit — i.  e.  that  the  nature  of  the 
action  is  such  as  the  court  is,  under  no  circumstan- 
ces, competent  to  try(V) .  As  if  a  real  action  were 
brought  in  B.  R. :  or  a  cause,  exclusively  of  ad- 
miralty jurisdiction,  in  any  court  of  common  law. 
In  any  such  case,  neither  a  plea  to  the  jurisdiction, 

(*)  1  Salk.  80.  1  Show.  191.  Carth.  182.  Com.  Dig.  Mate- 
tnent,  D.  3. 

(<)  Bac.  Abr.  Pleas,  &c.  E.  1.  1  Chitt.  PI.  427.  Cowp.  172. 
Andr.  198. 

(«)  4  T.  R.  503.  &  vid.  6  East,  583.  598-9.      7  T.  R.  587. 

(0)  10  Co.  68.  76.  b.  1  Vent.  133-4.  Hardr.  478.  481.  8 
Mass.  R.  87.  12  Ib.  367. 


OF  PLEAS  TO  THE  JURISDICTION.  237 

nor  any  other  plea  would  be  necessary,  to  oust  the    CHAP. 
jurisdiction   of  the  court.     The  cause  might  he  dis-        v. 

missed    on  motion  ;     and    even  without    motion,  it  

would  be  the  duty  of  the  court  to  dismiss  it  ex  offi- 
cio.  For  the  whole  proceeding  wrould  be  coram  non 
judice,  and  utterly  void. 

^  26.  As  to  the  mode  of  pleading  to  the  iurisdic-  R?odf. of 

•/    JT  o  J  pleading  to 

tion,  there  is  an  essential  difference  to  be  observed,  ^Oejurisdic" 
between  a  plea  to  the  jurisdiction,  in  a  court  of 
limited,  and  one  of  general  jurisdiction :  In  a  court 
of  the  former  class,  it  is  sufficient  to  plead  negatively 
— i.  e.  to  show,  by  proper  allegations,  that  the  court 
has  not  jurisdiction  :  Whereas  in  a  superior  court, 
it  is  necessary,  both  at  law,  and  in  equity,  and  as 
well  in  criminal  as  in  civil  cases,  not  only  to  show 
that  the  court  has  not  jurisdiction  ;  but  also  to  point 
out,  specially,  some  other  court  which  has  it.(w).  For 
if  it  does  not  appear  that  a  remedy  can  bo  had  in 
some  other  tribunal  ;  that  very  fact  will,  in  general, 
confer  jurisdiction  upon  a  superior  court ;  as  there 
would  otherwise  be,  for  aught  that  would  appear,  a 
failure  of  justice.  But  it  seems  manifest,  for  reasons 
which  have  already  been  stated,  that  neither  in  this, 
nor  in  any  other  way,  can  jurisdiction  be  ultimately 
given  to  any  court,  which  has  not  co'gnizance  of  the 
subject-matter,  as  where  the  action  is  brought  for  the 
recovery  of  real  property,  lying  in  a  foreign  country, 
or  where  the  process  of  the  court  cannot  run. 

(M>)  Yelv.  13.      1  Ves.  202.     2  Ib.  357.   2  Burr.  1047.    Cowp. 
172.     Doct.  PI.  234.      6  East,  583.  598.  601.     3  Mass.  R.  26. 

31 


2QQ  OF  PLEAS  TO  THE  JURISDICTION. 

CHAP.  §  27.  A  plea  to  the  jurisdiction  must  be  signed  by 
v.  the  defendant  in  person.  For  if  signed  by  an  attor- 
ney, who  is  an  officer  of  the  court,  he  is  supposed  to 
have  signed  it  by  leave  of  the  court ;  and  the  asking 
of  leave  is  considered  as  a  tacit  admission  of  the  ju- 
risdiction^?). But  such  an  implied  admission  obvi- 
ously cannot  aid  the  jurisdiction,  except  in  cases,  in 
which  the  objection  to  the  jurisdiction  must  be  tak- 
en, if  at  all,  by  plea  to  the  jurisdiction,  and  can  be 
taken  in  no  other  way. 

^  28.  In  ejectment,  according  to  the  English 
practice,  a  plea  to  the  jurisdiction  cannot  be  plead- 
ed, except  by  leave  of  court(y)  :  Because  without 
such  leave,  the  real  defendant  is,  by  the  '  common 
rule,'  obliged  to  plead  the  general  issue. — Under  the 
more  simple  forms  of  this  action,  which  prevail  in 
some  of  the  United  States,  no  such  leave  is  neces- 
sary. 

^  29.  A  plea  to  the  jurisdiction  concludes  to  the 
cognizance  of  the  court,  by  praying  judgment,  if  the 
court  will  take  '  cognizance,  (or  have  further  cogni- 
zance)', of  the  suit — or,  in  more  technical  language, 
'  of  the  plea  afore  said '(2). 

(x)  Bac.  Ab.  Abatement,  A.  Ib.  Pleas,  &c.  E.  2.  6  Mod. 
146.  Lawes'  PI.  91.  6  Pick.  371. 

(y)  1  Black.  Rep.  197.  2  Burr.  1046.  3  Wils.  51.  8  T. 
R.  474. 

(*)  Bac.  Abr.  Pleas,  &c.  E.  1.  3  Black.  Com.  303.  1 
Wentw.  PI.  19.  2  Chitt.  PI.  412.  3  T.  R.  186.  5  Mod.  146. 
Lawes'  PI.  109. 


OF  PLEAS  TO  THE  DISABILITY  OF  PLAINTIFF.  239 

§  30.  Whenever  jurisdiction  cannot  be  given  to    CHAP. 
the  court,  by  the  defendant's  omitting  to  plead  to       v. 

the  jurisdiction,  or  by  consent  of  parties,  the  plain-  • 

.•rr-    •         ,i  •  f  ,i  £     .  When  the 

tiff  in  the  suit  may  assign  lor  error  the  want  of  ju-  plaintiff 

risdiction ;  although  he,  himself,  chose  to  resort  to  "hTwanT^" 

the  court  for  redress(«).     For  in  such  a  case,  no-  for  error. 
thing  can  give  validity  to  the  judgment. 


II.   Of  Pleas  to  the  disability  of  the  Plaintiff. 

§  31.  There  are  certain  legal  disabilities,  which 
disqualify  the  subjects  of  them  to  prosecute  suits  ; 
and  which  are  therefore  pleadable  '  to  their  disabili- 
ty' as  plaintiffs.  Some  of  these  entirely  defeat  the 
suit ;  while  others  only  suspend  it,  quousque — until 
the  disability  be  removed. 

These  disabilities,  as  they  exist  in  the  law  of 
England,  are  the  following : 

^  32.     I.   Outlawry(3). — That  the  plaintiff  is  an  outlawry. 
outlaw,  is  pleadable  to  his  disability :    One  of  the 
effects  of  a  judgment  of  outlawry  being,  to  disable 
the  outlaw  to  assert  any  civil  right  in  a  court  of  jus- 
tice, while  that  judgment  remains  in  force(6). 

(a)  2  Cranch,  126. 

(6)  Bac.  Abr.  Abatement,  B.     Litt.  §  197.     Co.  Litt.  128.  a. 

(3)  As  this  disability,  and  those  which  follow  it,  to  that  of  ex- 
communication, inclusive,  can  be  of  little  practical  importance 
in  the  United  States ;  little  more  concerning  these,  than  a  mere 
enumeration  of  them,  will  be  presented  in  this  Treatise. 


240  OF  PLEAS  T0  THE  DISABILITY  OF  PLAINTIFF. 

CHAP.  §  33.  If  the  disability  existed,  when  the  cause  of 
v.  action  accrued ;  it  has  the  effect  of  totally  defeating 
the  suit(c)  ;  which,  in  such  a  case,  was  improper  in 
its  commencement.  But  the  disability,  when  it  com- 
mences after  the  accruing  of  the  cause  of  action,  is 
only  a  temporary  impediment,  which  does  not  abso- 
lutely destroy  the  suit.  For  as  the  action  in  this 
case  is  rightly  commenced ;  the  supervening  disabili- 
ty has  no  other  effect,  than  that  of  suspending  the 
proceedings  in  it,  until  the  impediment  is  removed  ; 
and  this  can  be  done,  only  by  a  reversal  of  the  judg- 
ment of  outlawry,  or  a  pardoned). 

^  34.  If  two  sue  as  co-plaintiffs,  in  a  personal  ac- 
tion, a  plea  that  one  of  them  is  an  outlaw,  will,  if 
established,  defeat  or  suspend  the  suit,  as  to  both(e). 
For  as  they  sue  jointly,  and  of  course  assert  a  joint 
right ;  they  must  recover  jointly,  or  not  at  all,  in 
that  suit. 

plead"  %  35.  That  the  plaintiff  is  an  outlaw,  is  always 
pleadable  to  his  disability,  and  in  some  cases  it  can 
be  pleaded  in  no  other  w7ay ;  in  others,  it  may  be 
pleaded  either  to  his  disability,  or  in  bar(f).  And 
the  distinction  between  these  different  cases,  is  the 
following : — 

(c)  Lawes'  PI.  102-3. 

(d)  Bac.  Abr.  Abatement,  B.  1.     Lawes'   PI.  103.      12    Mod. 
400. 

(e)  Com.  Dig.  Abatement,  E.  2. 

(/)  Bac.  Abr.  Abatement,  L.     Co.  Litt.  118.  b. 


OF  PLEAS  TO  THE  DISABILITY  OF  PLAINTIFF.  241 

§  36.  If  the  right  of  action  is  not  forfeited  by  the    CHAP. 
outlawry — (as  where  the  action  is  for  an  injury  to  the        v. 

person  ;   such  as  battery,  slander,  &c. ;  and  in  gener-  

al,  where  the  damages  demanded  are  altogether  pre- 
sumptive)— this  defence  goes  only  to  the  disability 
of  the  plaintiff,  and  is  not  pleadable  in  bar(g)  :  Be- 
cause rights  of  action,  of  this  kind,  are  not  in  their 
nature  forfeitable  by  crimes. 

^  37.  But  a  judgment  of  outlawry,  which  works 
a  total  forfeiture  of  the  outlaw's  property,  (as  where 
he  is  outlawed  on  a  charge  of  felony),  may,  in  gener- 
al, be  pleaded  either  to  his  disability,  or  in  bar,  in 
all  suits  in  which  he  asserts  a  right  of  property(h). 
For  by  such- a  judgment,  the  right  of  action  is  itself, 
by  the  common  law,  forfeited  to  the  crown  or  state. 

^  38.  II.  Attainder  of  treason  or  felony,  by  the  Attainder. 
common  law,  disables  the  party  attainted,  to  prose- 
cute any  civil  action,  and  may  therefore,  (like  a 
judgment  of  outlawry  for  such  an  offence),  be  plead- 
ed to  his  disability,  when  plaintiff  in  a  suit(i). 
For  by  the  attainder,  the  traitor  or  felon  is  civilly 
dead(&). 

(g)  Bac.  Abr.  Outlawry,  D.  4.  (3).  Ib.  Abatement,  L.  Co. 
Litt.  128.  b.  1  Chitt.  PI.  473.  5  Co.  109.  2  Lill.  Ab.  333. 
Ow.  22.  3  Lev.  29. 

(h)  Bac.  Abr.  Outlawry,  D.  4.  (3).  Abatement,  L.  Com. 
Dig.  Pleader,  2.  G.  4.  1  Chitt.  PI.  473.  Lawes'  PI.  38.  104. 

(t)  3  Black.  Com.  301.  4  Ib.  112.  380—2.  Com.  Dig. 
Abatement,  E.  3. 

(fe)  4  Black.  Com.  380.     3  Inst.  213. 


OF  PLEAS  TO  THE  DISABILITY  OF  PLAINTIFF. 

CHAP.        §  39.  III.  IV.  V.  Prcemunire,  (or  the  offence  of 
v.        maintaining  the  Papal  power  in  the  realm  of  Eng- 
land)  —  Popish  recusancy  —  and  Monachism,  i.  e.   be- 


Prsemunire.     •  n,r      T  r  t  11  i 

&c.  ing  a  Monk  professed,  are,  by  me  common  and   stat- 

ute law  of  England,  respectively  pleadable  to  the 
plaintiff's  disability(/).  But  neither  of  these  disabi- 
lities, I  trust,  is  recognized  by  the  laws  of  any  of  the 
United  States. 

^  40.  VI.  Excommunication  is  also,  by  the  law  of 
England,  a  civil  disability,  and  as  such  pleadable  to  the 
person  of  an  excommunicated  plaintiff,  suing  either 
in  his  own  right,  or  in  the  character  of  executor  or 
administrator(m).  The  excommunication  of  the 
plaintiff  does  not  however  destroy  the  suit,  but  mere- 
ly suspends  it  until  the  plaintiff  has  obtained  absolu- 
tion(n).  This  disability  also  is  unknown  to  the  laws 
of  this  country. 

Alienage.  ^  ^j  yjj  Alienage  is,  in  some  actions,  plead- 
able to  the  disability  of  the  plaintiff;  but  not  in  all. 
In  regard  to  the  extent  of  this  disability,  there 
exists  a  distinction,  first,  between  alien  enemies 
and  aliens  in  amity  ;  and  secondly,  between  the 
species  of  actions,  which  the  latter  can,  and  cannot, 
maintain. 

(/)  3  Black.  Com.  301-2.  4  Ib.  112.  Com.  Dig.  Abatement, 
E.  5. 

(?n)  Godolph.  85.  3  Black.  Com.  301.  Bac.  Abr.  Abatement, 
B.  2. 

(n)  Bac.  Abr.  Abatement,  B.  2.     Vid-  St.  51  Geo.  HI.  c.  127. 


OF  PLEAS  TO  THE  DISABILITY  OF  PLAINTIFF.  243 

^  42.     An  alien  enemy  can  in  general  maintain,    CHAP. 
in  his  own  right,  no  action  ;  real,  personal  or  mixed.       v. 
This  rule  extends,  as  well  to  prisoners  of  war  de- 
tained  here,  as   to   all   other  subjects   of  a   hostile 
power(o).     For,  as  a  general   rule,  such   an   alien, 
being  out  of  the  protection  of  the  laws  of  the  state, 
with  which  his  own  is  at  war,   can   have  no  civil 
remedies  under  them. 

^  43.  This  rule,  however,  does  not  extend  to  an 
alien  enemy  residing  here,  under  a  license,  protec- 
tion, or  safe  conduct,  from  the  executive  govern- 
ment(p).  For  such  license,  &c.  places  him  under 
the  protection  of  the  law,  and  substantially  upon  the 
same  footing  as  that  of  an  alien  friend. 

^  44.  The  question  whether  an  alien  enemy, 
not  thus  protected  by  the  government,  can  maintain 
suits  in  the  character  of  executor  or  administrator, 
has  been  a  subject  of  considerable  debate,  and  di- 
versity of  opinion(^).  The  better  opinion  appears 
to  be,  that  he  cannot(r).  For,  without  adverting 
to  the  several  reasons,  urged  in  the  books,  on  either 
side  of  the  question,  it  may  be  sufficient  to  observe, 
that  his  right  to  sue  here,  in  any  capacity,  would 

(o)  Bac.  Abr.  Abatement,  B.  3.  Aliens,  D.  2  Stra.  1082.  6  T. 
R.  23.  49.  8  Ib.  166.  4  East,  502. 

( p)  Bac.  Abr.  Abatement,  B.  3.  Aliens,  D.  1  Salk.  46.  4 
Mod.  405.  1  Ld.  Ray.  282.  2  Stra.  1082.  8  T.  R.  166.  10 
Johns.  R.  69. 

(q)  Cro.  Eliz.  142.  684.  Skin.  370.  Carter,  193.  Bac.  Abr. 
Aliens,  D.  Executors,  &c.  A.  4. 

(r)  Co.  Litt.  129.  b.  1  Salk.  46.  1  Ld.  Ray.  282.  Toll,  on 
Ex'rs.  32. 


244  OF  PLEAS  TO  THE  DISABILITY  OF  PLAINTIFF. 

CHAP,    seem  of  course  to  give  him  the  additional  right,  not 
v.       only  of  holding  such  personal  intercourse  and  commu- 

nication  with  his  counsel  and  others   here,  as   the 

policy  of  the  laws  of  war  forbids,  between  the  sub- 
jects of  belligerent  states  ;  but  also  of  appearing 
personally  in  the  court,  in  which  his  action  is 
brought,  and  of  remaining,  during  its  pendency, 
within  the  territories  of  the  state  at  war  with  his 
own  :  A  right,  which  no  alien  enemy,  not  protected 
by  the  government  of  the  state  with  which  his  own 
is  at  war,  can  possess. 

'  Alien  enemy*  may  be  pleaded,  as  well  in  bar,  as 
to  the  plaintiff's  disability(s).  For  the  law  recog- 
nizes, in  such  alien,  no  right  of  action  during  the 
war. 

§  45.  Under  the  plea,  that  the  plaintiff  is  an 
alien  enemy,  the  burden  of  proof  is  on  the  defend- 
ant^). For  every  suitor  is  presumed  to  be  under 
the  protection  of  the  law,  and  of  ability  to  maintain 
his  suit,  until  the  contrary  is  shown.  Hence  the 
plea  must  allege,  not  only  that  the  plaintiff  is  an 
alien  enemy  ;  but  also,  that  he  has  no  license,  safe- 
conduct,  or  protection,  from  the  government  of  the 
kingdom  or  state,  in  which  the  suit  is  brought(w)  : 
An  example  of  the  highest  degree  of  certainty 

(s)  Bac.  Abr.  Abatement,  B.  3.  Miens,  E.  Co.  Litt.  129.  6 
T.  R.  24.  4  East,  407.  410.  Com  Dig.  Abatement,  K.  1  Bos. 
&  P.  222.  (n.  a.)  2  Ib.  72.  2  Chitt.  PI.  425-6.  1  Ib.  470. 
473.  3  Inst.  Cler.  16.  Vid.  10  Johns.  R.  183.  11  Mass.  R. 
26.  119. 

(t)  2  Stra.  1082.      Vid.  also  8  T.  R.  166.     4  Mod.  405. 

(«)  8  T.  R.  166.  4  Mod.  405.  3  Inst.  Cler.  16.  2  Chitt. 
PL  425—- 6.  Vid.  2  Gallison,  127—129 ;  semb.  con/. 


OF  PLEAS  TO  THE  DISABILITY  OF  PLAINTIFF. 

required   in  pleading.     (Vid.  post.   ^  66.   67.  and    CHAP. 
ante,  ch.  3,  §^  57.  58.)  v. 


§  46.  An  alien-friend,  being  under  the  protec- 
tion of  the  law,  may  in  general  maintain  actions  of 
any  kind,  either  in  his  individual  or  representative 
character  ;  except  in  so  far  as  his  legal  incapacity 
to  hold  certain  species  of  property  disables  him  to 
sue  for  the  recovery  of  it,  or  for  damage  done  to  it. 

He  may,  therefore,  maintain  actions  for  the  re- 
covery of  debts — for  injuries  to  his  person — and  in 
general,  actions  of  any  kind  relating  to  personal 
chattels^).  In  these  several  cases,  therefore,  alien- 
age is  no  disability. 

^47.  In  real  and  mixed  actions,  however,  alien- 
age is  held  a  good  plea  to  the  disability  of  the  plain- 
tiff, even  though  he  be  an  alien-friend (w).  For  in 
both  these  actions,  real  property  is  recovered ;  and 
as  no  alien  can,  it  is  said,  hold  such  property,  it  fol- 
lows that  he  cannot  recover  it  by  suit(4). 

(«)Cowp.  171.    3  Black.  Com.  384.    2  H.  Black.  162.    Yelv. 
198.    Bac.  Abr.  Miens.  D.    Co.  Litt.  129.  b.   2  Kent's  Com.  54. 
(w)  Bac.  Abr.  Abatement,  B.  3.    Miens,  D.  Co.  Litt.  129.  b. 


(4)  The  common  law  rule,  disabling  aliens  to  hold  real  pro- 
perty against  the  sovereign  or  state,  has  been  adopted  to  its  full 
extent,  in  most  of  the  United  States.  In  some  of  them,  how- 
ever— as  in  Pennsylvania,  Kentucky,  and  probably  in  some  of 
the  new  states — the  rule  has  been  somewhat  relaxed  ;  (Vid. 
New.  Edinb.  Encyclop.  Am.  ed.  Art.  Alien,  by  Duponceau)- 
And  private  statutes  enabling  foreigners  to  hold  lands,  like  na- 

32 


246  OF  PLEAS  TO  THE  DISABILITY  OF  PLAINTIFF. 

CHAP.  §  48.  But  this  rule  seems  to  require  some  quali- 
v.  fication.  For  though  no  alien  can  inherit  real  es- 
tate ;  an  alien  friend  can,  nevertheless,  take  it  by 
purchase,  and,  as  a  purchaser,  hold  it  against  all 
others  than  the  king  or  state — and  even  against 
these,  until  office-found (x)  (5).  It  would  seem, 
therefore,  that  until  office-found,  he  may  sue  for  and 
recover  it ;  and  so  it  has  been  held,  in  this  coun- 
try(y)  (6). 

§  49.  In  ejectment  also,  brought  by  an  alien- 
friend  in  his  own  right,  his  alienage  is  regularly 
pleadable  to  his  disability,  as  in  real  and  mixed  ac- 
tions ;  because  he  cannot,  in  general,  hold  even  a 
term  for  years,  in  his  own  right  (2). 

(a?)  Co.  Litt.  2.  b.  5  Co.  52.  9  Ib.  141.  Pow.  Dev.  316. 
4  T.  R.  300.  4  Cruise's  Dig.  22.  Esp.  Dig.  439.  3  Dallas, 
305-6.  n.  1  Mass.  R.  256.  12  Ib.  143.  7  Cranch,  603.  2 
Kent's  Com.  53. 

(y)  1  Mass.  R.  256.     7  Cranch,  603. 

(z)  Poph.  36.  Co.  Litt.  2.  b.  Bac.  Abr.  Aliens,  C.  2 
Black.  Com.  297.  1  Roll.  Ab.  194. 

tive  citizens,  are  sometimes  passed  by  our  state-legislatures.  This 
is  usually  done,  indeed,  as  a  matter  of  course,  in  favor  of  femes 
covert,  who  are  foreigners,  on  a  prayer  that  they  may  be  enabled 
to  hold  dower  in  the  inheritable  estates  of  their  American  hus- 
bands. 

(5)  By  '  office-found,'  is  here   meant,  a  certain  species   of  in- 
quisition or  verdict,  finding  a  person  to  be  an  alien  ;  upon  which 
finding,  the  estate  purchased  by  him  vests  in  the  crown  or  state. 

(6)  According  to  the  terms  of  the  statute  of  Connecticut,  on 
this  subject,  no  alien  is  capable   of  l  purchasing  or  holding'  land 
in  the  state.     Probably,  however,  nothing  more  than  an  affirm- 
ance of  the  common  law  rule  was  intended  by  this  enactment. 


OF  PLEAS  TO  THE  DISABILITY  OF  PLAINTIFF.  247 

But  to  this  rule  there  is  one  exception  :  An  alien-     CHAP. 
friend,  being  a  merchant,  may  hold,  in  his  own  right,        v. 

a  term  for  years,  in  a  house  or  building,  for  the  con-  

venience  of  merchandizing^).  This  exception  is 
allowed,  for  the  encouragement  of  trade  and  com- 
merce. And  as  an  alien-friend  may,  in  the  capacity 
of  executor  or  administrator,  hold  a  term  for  years,  in 
the  right  of  others,  who  are  not  aliens  ;  he  is  of 
course  capable,  in  either  of  those  capacities,  of  suing 
for  the  recovery  of  it(6). 

^  50.  VIII.  Coverture.  When  a  feme  covert  coverture. 
sues,  otherwise  than  as  co-plaintiff  with  her  hus- 
band, her  coverture  is  generally  pleadable  to  her 
disability(c).  The  principal  reason  of  her  inability 
to  sue  alone,  appears  to  be,  that  if  she  were  permit- 
ted thus  to  sue,  the  result  of  the  suit  might  impair 
both  the  property  of  the  husband,  and  his  marital 
rights :  Since  both  might  be  put  in  hazard,  by  a 
judgment  against  her. 

§  51.  But  if  the  husband  has  abjured  the  realm, 
or  is  banished,  or  is,  from  any  cause,  civilly  dead ; 
this  disability  of  the  wife  ceases,  and  she  may  con- 
sequently sue  alone(^).  For  in  such  cases,  the 
husband,  though  actually  living,  is  regarded  as  hav- 

(o)  lid. 

(6)  Cro.  Car.  8.          Bac.   Abr.  Aliens,  D. 

(c)  Com.  Dig.    Abatement,   E.  6.     Bac.   Abr.    Abatement,  G. 
Co.  Litt.  132.     3  T.  R.  631. 

(d)  Bac.  Abr.  Abatement,  G.     Com.  Dig.     Abatement,   E.  6. 
Co.  Litt.  132.     1  Black.  Com.  469. 


248  OF  PLEAS  TO  THE  DISABILITY  OF  PLAINTIFF. 

CHAP.     mg  no  civM  rights ;  and   the  wife  is,   therefore,  in 
v.        contemplation  of  law,  a  feme  sole. 


^  5-2.  And  if  a  feme  sole,  being  plaintiff  in  a 
suit,  marries  while  it  is  pending;  this  supervenient 
coverture  may,  by  the  common  law,  be  pleaded  to 
her  disability  (e).  For  by  this  act,  she  is  disabled 
to  proceed  further  in  the  suit,  on  the  same  princi- 
ples, on  which  a  prior  marriage  would  have  disabled 
her  to  sue  at  all. — But  by  a  statute  provision,  in 
the  states  of  Connecticut  and  Massachusetts,  if  a 
feme  sole  plaintiff  marries,  pendente  lite,  her  husband 
may  appear,  suggest  the  marriage  upon  the  record, 
and  then  proceed  in  the  suit,  jointly  with  her. 

^  53.  The  plaintiff's  coverture  is  pleadable,  only 
as  a  dilatory  plea.  It  is  no  defence  in  bar(f)  :  Be- 
cause the  fact  of  her  coverture  goes  neither  in  de- 
nial nor  avoidance  of  the  cause  of  action ;  but  simply 
in  denial  of  her  legal  ability  to  commence  or  prose  • 
cute  the  suit,  alone. 

infancy.  §  54.     IX.  Infancy.     That  the  plaintiff  is  an  in- 

fant, is  pleadable  to  his  disability,  unless  he  appears 
by  guardian,  or  his  prochein  amie,  (next  friend)  (g). 
For  he  cannot  declare  or  appear  in  person,  by  rea- 

(e\  3  Black.  Com.  316.  Bac.  Abr.  Abatement,  G.  4  Serg.  & 
R.  238.  17  Mass.  R.  342. 

(/)  3  T.  R.  631.      Carth.  124. 

(g-)  Co.  Litt.  135.  b.  2  Saund.  117.  f.  (n.  1.)  3  Black.  Com. 
301—2.  Bac.  Abr.  Infancy,  &c.  K.  2.  7  Johns.  R.  373.  2 
Connect.  R.  357. 


OF  PLEAS  TO  THE  DISABILITY  OF  PLAINTIFF.  249 

son  of  his  supposed  want  of  judgment  to  conduct  a  CHAP. 

suit ;    nor  by  attorney,  on  account  of  his  legal  inabil-  v. 
itj  to  make  a  power  of  attorney. 


Infancy. 


§  55.  By  the  common  law,  if  an  infant  plaintiff 
appears  by  attorney,  and,  (no  plea  to  his  disability 
being  interposed),  judgment  is  given,  either  against 
or  for  him  ;  it  is  error,  and  the  judgment  may  be  re- 
versed by  writ  of  error  (A). 

But  by  the  English  statutes  21  Jac.  1,  c.  13,  §  2, 
and  4  Ann.  c.  16,  ^  2,  if  judgment,  in  such  a  case, 
is  for  the  infant,  upon  verdict,  or  by  confession,  nil 
dicit,  or  non  sum  informatus ;  it  is  valid(z). 

§  56.  And  by  the  common  law,  where  an  infant 
sues  as  co-executor  with  an  adult,  both  may  appear 
by  attorney  (/c).  For  the  suit  being  en  auter  droit, 
the  personal  rights  of  the  infant  are  not  affected  by 
it ;  and  therefore  the  adult  is  permitted  to  appoint 
an  attorney  for  both. 

§  57.  Any  person,  in  general,  being  of  full  age, 
and  sui  juris,  may  name  himself  next  friend  to  an 
infant  plaintiff(/)  ;  and  in  that  character,  may  insti- 
tute a  suit  in  the  name  of  the  latter.  But  to 

(h)  Cro.  Jac.  4.  Cro.  Eliz.  424.  1  Roll.  Ab.  287.  Carth. 
123.  2  Saund.  212.  (n.  4.)  Bac.  Abr.  Infancy,  &c.  K.  1.  2.— 
vid.  cont.  Cro.  Jac.  441. 

(«')  2  Saund.  212.  (n.  5.) 

(k)  2  Saund.  212.  213.  Bac.  Abr.  Infancy,  &c.  K.  2.  Carth. 
123.  1  Roll.  Ab.  288.  Cro.  Eliz.  642.  2  Stra.  784. 

(/)  1  Eq.  Ca.  Ab.  72.     Bac.  Abr.  Infancy,  &c.  K.  2. 


250  OF  PLEAS  TO  THE  DISABILITY  OF  PLAINTIFF. 

CHAP,    guard  the  infant  against  injury  from  mismanagement, 
v.       the  court  exercises  the  power  of  admitting,  or  dismiss  - 

ing,  the  next  friend (m). 

« 

Plaintiff  not  ^  58.  X.  That  the  person,  named  as  plaintiff,  is 
not  (or  rather  that  he  never  was)  in  rerum  natura,  is 
a  good  plea  of  this  class(w)  ;  as  where  he  is  a  ficti- 
tious, or  imaginary  person.  For  in  such  a  case,  there 
is,  in  fact,  no  plaintiff. 

And  if  one  of  several  co-plaintiffs  is  an  imaginary 
person  ;  that  fact,  pleaded  as  to  him,  will  defeat  the 
whole  suit(o).  For  where  several  persons  sue,  as 
joint  plaintiffs,  they  must,  regularly,  recover,  if  at 
all,  jointly.  (Vid.  post.  Pleas  in  Abatement,  ^  107.) 
(6). 

§  59.  But  where  a  suit  is  brought  in  the  name 
of  a  person  once  existing,  but  who  is  dead,  at  the 
commencement  of  the  suit,  a  plea  that  he  was  not 
in  esse  when  the  writ  was  purchased,  is  said  to  be 
illQ?)  :  The  proper  plea,  in  such  a  case,  being,  that 

(m)  Stra.  304.  709.  Bac.  Abr.  Infancy,  &c.  K.  2.   1  Ld.  Ray.' 
332.     Comb.  331. 

(n)  Com.  Dig.  Abatement,  E.  16.  17.  Lawes'  PI.  104.  1 
Wils.  302.  1  Chitt.  PI.  435-6.  6  Pick.  370.  19  Johns.  R.  308.' 

(o)  Com.  Dig.  Abatement  E.  16. 


(6)  There  is  an  exception  to  this  general  position,  when  there 
is  a  summons  and  severance,  in  personal  actions,  and. also,  in  ma- 
ny cases,  where  one  of  several  co-plaintiffs  dies  after  the  com- 
mencement of  the  suit.  (Vid.  post.  Pleas  in  Abatement,  §§  91. 
92.) 


OF  PLEAS  TO  THE  DISABILITY  OF  PLAINTIFF.  251 

he  was  dead  at    the  time. — This  diversity,  in  the    CHAP. 
form  of  pleading,   seems  intended   merely  to  mark       v. 
the  difference   between  the  case  of  a  person,  named 
as  plaintiff   after  his  death,   and   that  of  a  plaintiff 
altogether  imaginary. 

§  60.  That  the  plaintiff  was  never  in  esse,  seems 
also  to  be  a  good  plea  in  bar(q).  For  that  a  right 
of  action  should  exist,  in  favor  of  an  imaginary  per- 
son, is  plainly  impossible(7). 

^  61.  Pleas  to  the  disability  of  the  plaintiff  con- 
clude, by  praying  judgment ;  '  if  the  said  A.  B.  the 
plaintiff,  ought  to  be  answered' — or,  (when  the 
disability  operates  only  as  a  temporary  suspension  of 
the  suit),  '  that  the  plaint  may  remain  without  day, 
&c.'  i.  e.  until  the  disability  be  removed(r). 

(q)  Vid.  1  Bos.  &  P.  44.  Bro.  Ab.  Misnomer,  93. 
(r)   3  Black.  Com.  303.  Tidd,  585.  Lawes'  PL  109. 

(7)  That  the  nominal  plaintiff,  in  the  English  ejectment,  is  fic- 
titious, is  however  not  pleadable,  in  any  form.  His  fictitious  cha- 
racter is  an  essential  part  of  the  machinery  of  that  action  ;  and  the 
fiction,  being  devised  for  the  advancement  of  justice,  cannot  be 
contradicted.  Indeed,  the  real  defendant  has  generally  no  oppor- 
tunity to  plead  the  fact :  Since  he  is  .obliged,  under  the  consent- 
rule,  to  plead  the  general  issue.  Vid<-4  M.  &  S.  301.  19  Johns. 
R.  169. 


252  OF  PLEAS  JN  ABATEMENT. 

CHAP. 
V. 

III.  Of  Pleas  in  Abatement. 


pieas  in  ^  62.  The  term   '  abatement,'  in  the    language  of 

abatement,         IT  •  r  •  7  7  •    • 

nature  of.     pleading,   signifies   prostration,  or  demolition;    and 
hence,  to  *  abate'  a  writ,   is  to  prostrate  or  destroy 


§  63.  Pleas  in  abatement,  in  most  instances,  ex- 
tend only  to  the  writ,  when  the  suit  is  commenced 
by  original  writ(i).  In  some  cases,  however,  pleas 
of  this  class  may  be  pleaded  to  the  count,  even  when 
the  suit  is  thus  commenced(w). 

^  64.  But  defects  or  mistakes,  apparent  upon 
the  face  of  the  declaration,  independently  of  any  re- 
ference to  the  writ,  are  not  pleadable  in  abatement(^): 
The  proper  mode  of  taking  advantage  of  such  faults 
being  by  demurrer.  On  the  contrary  however,  cer- 
tain mistakes  in  the  declaration,  when  not  apparent 
upon  the  face  of  it,  (such,  for  example,  as  misnomer, 
variance  from  the  writ,  &c.)  are  proper  subjects  of  a 
plea  in  abatement.  (Ante,  ch.  2,  §  34.)(8). 

(*)  Co.  Litt.  134.  b. 
(<)  3  Black.  Com.  301-3. 

(u)  3  Black.  Com.  301-3.  Com.  Dig.  Abatement,  G.  1.  Doct. 
PL  1.     Lawes'  PI.  102.  105. 
(t>)  1  Salk.  212.     Willes,  478. 

(8)  In  respect  to  the  precise  office  and  extent  of  pleas  in  abate- 
ment, there  is  some  confusion,  or  apparent  inconsistency,  in  the 


V. 


OF  PLEAS  IN  ABATEMENT.  253 

§  65.  When  the  suit  is  commenced  by  bill,  the    CHAP. 
defendant  may  plead  in  abatement  of  the  '  bill,'  as 

books.     Pleas  of  this  class  are  sometimes  mentioned  in  a  manner 
implying  that  they  extend  only  to  the  ten'/,  and   that  no  defects  in 
the  count  can  be  reached  by  them.     But    this   limitation  of  their 
effect  is  clearly  too  unqualified.     It  is  indeed  universally  true,  that 
a  plea  to  the  ivrit,  if  properly  framed   for  its  purpose,  is  a  plea 
in  abatement :   But  it  is  not  always  true,  e  converse,  that  a  plea  in 
abatement  can  extend  to  the  writ  only ;  for   by  the  common  law, 
various  matters  of  abatement  are  pleadable   to   the  declaration— 
though  in  consequence  of  certain  modern  rules  of  practice,  in  the 
English  C.  B.  and  B.  R.   pleas   in  abatement,  to   the  declaration, 
are,  to  a  great  extent,  virtually  abolished  in   those   courts.     And 
the   change,   thus  introduced,   between  the  ancient   and  modern 
practice,  appears  to  be  the  chief  cause  of  the  apparent  inconsist- 
ency above  alluded  to.— To  explain,  somewhat  more   particularly, 
what  is  here  suggested,  it  may  be  observed,  that  pleas  in  abate- 
ment, to  the  count,   which  were  frequent   in   the  ancient  practice, 
were  founded  chiefly  upon   some  defect,  mistake,   or  informality, 
appearing  either  in  the  recital  of  the  writ,  in  the  declaration,  (which 
recital  was  then  deemed  necessary,  in  all  cases)— or  upon  seme 
variance  between  the  count  and  the  writ.      (Lavves'  PL  105.     1 
Saund.  318.  n.  3.     Cro.  Eliz.  829.  185.  330.  198.)     But  in  the 
year  1654,  a  rule  of  court  was   established   by  the   English  C.  B. 
ordering  that  thenceforth  '  declarations  in  actions  upon  the  case, 
and  general  statutes,  other  than  debt,  should  not  repeat  the  origin- 
al writ,  but  only  the  nature  of  the  action*  (1  Saund.  318.  a.  (n.  3.) 
Lawes'  PI.  105-06.)     And  it  seems  that  the  more  recent  practice 
has  somewhat  extended  the  operation  of  the  rule   (Carth.  108.     1 
Saund.  ub.  sup.)     The  consequence  has   been,  that  in  cases  af- 
fected by  this  rule,  all  pleas  in  abatement,  founded  upon  the  re- 
dial  of  the  writ  in  the  count,  have  been  abolished.     And  no  ad- 
vantage can  be  taken  of  any  variance  between  the  writ  and  the 
count,  but  by   obtaining  oijer  of  the  original  tmV,  (Com.   Dig. 
Abatement,   H.   1.)     But  by  a  more  recent  rule  of  C.  B.   and 
B.  R.  established  in  the  12  Geo.  2,  and  19   Geo.  3.     (Vid.  post, 
§  101,)  it  was  ordered,  that  oyer  of  the  original  should  not  thence- 
33 


OF  PLEAS  IN  ABATEMENT. 


CHAP,    he  may  ofw  the  '  writ,'  when  it  is  commenced  by  writ. 
v.       In  the  forrtfer  case,  the  plea  prays  judgment  of  the 
bill,  as  in  the  latter  it  does  of  the  writ(w). 


Requisites  ^  QQ  jt  hag  been  stated  ul  a  former  chapter  (vid. 
ch.  3,  ^  57.  58),  that  in  pleas  of  this  class — as 
in  all  other  dilatory  pleas,  the  greatest  precision  and 
certainty  are  required,  because  dilatory  pleas  are  odi- 
ous, or  at  least  not  favored.  Hence,  the  least 
inaccuracy  or  defect,  in  pleas  of  this  kind,  is 
fatal(V).  " 

^  67.  It  is  a  general  rule,  founded,  upon  the  same 
principle,  that  a  plea  in  abatement  must  '  give  the 
plaintiff  a  better  writ\y)  ;  i.  e.  it  must  be  so  plead- 
ed as  to  enable  the  plaintiff,  (in  a  subsequent  suit 
for  the  same  cause),  to  supply  the  defect,  or  avoid 
the  mistake,  upon  which  the  plea  is  founded.  Thus, 

(w)  3  Black.  Com.  303. 

(a)  Cro.  Jac.  82.  3  T.  R.  185-6.  5  Ib.  487.  8  Ib.  167.  2 
Saund.  209.  b.  Com.  Dig.  Abatement,  I.  11.  Willes,  554.  1 
Lill.  Ent.  1.  6.  2  H.  Black.  530. 

(i/)  Com.  Dig.  Abatement,  I.  1.  2.  Lawes'  PI.  39.  103-4.  8  T. 
R.  515.  1  Lill.  Ent.  6.  Willes,  554.  2  Chitt.  PI.  418.  Vid. 
Yelv.  112.  (n.  1.)  6  Pick.  369.  Archb.  Civ.  PI.  (Amer.ed.)  334. 

forth  be  granted.  And  the  effect  of  this  rule  has  been,  to  abolish 
all  pleas  in  abatement,  founded  upon  any  variance  between  the 
declaration  and  the  writ.  Thus,  pleas  in  abatement  to  the  count, 
are,  in  the  modern  practice  of  those  two  courts,  almost  unknown. 
— When,  indeed,  as  is  most  usual  in  B.  R.,  the  suit  is  commenc- 
ed by  bill,  no  distinction  can  exist,  between  pleas  to  the  ivrit  and 
to  the  count.  For  in  these  cases,  the  bill  itself  is  the  only  original ; 
and  all  pleas  in  abatement  are  to  the  bill.  Vid.  post.  §§  82-84. 


OF  PLEAS  IN  ABATEMENT.  255 

if  the  defendant  pleads  that  he  is  misnamed,  or  that    CHAP. 
a  wrong  addition  is  given  him,  in  the  writ ;    he  must       v. 

show,  in  his  plea,  what  his  true  name  or  addition  is ;  

and  thus  enable  the  plaintiff  to  avoid  a  similar  mis- 
take in  a  subsequent  suit(z).  And  this  rule  is  ap- 
plied to  indictments,  as  well  as  to  civil  ac- 
tions(2;z). 

^  68.    The   causes   or    grounds   for   pleading  in  Cauges°f. 
abatement,  may  be  either   intrinsic,   or   extrinsic — 
either   apparent  upon  the  face  of  the  writ,  &c.  ;  or 
not  thus  apparent(a). 

These  causes,  in  the  order  here  proposed,  are 

&  69.    I.    Misnomer,    and    want   of    mistake   of  Misnomer, 

* .   .  .  &c.  of  de- 

addition. — If  the  defendant  is  sued,  or  declared 
against,  by  a  wrong  name ;  he  may  plead  the  mis- 
take in  abatement(6).  The  object  of  this  rule  is, 
to  prevent  mistakes  and  confusion  as  to  the  identity 
of  the  person  sued.  A  party  may  however  sue,  or 
be  sued,  by  any  name  by  which  he  is  known  and 
called,  at  the  commencement  of  the  suit(c)  ;  though 
it  be  not  in  his  baptismal,  or  original  name.  For  he 

(z)  Bac.  Abr.  Misnomer,  &c.  F.     1  Salk.  6.  7.     Willes,  554. 
1  Lill.  Ent.  6. 

(zz)  6  M.  &  S.  88. 

(a)  Lawes'  PI.  102.  106. 

(b)  3  Black.  Corn.  302.     1  Salk.  7.     3  East,  167.     Bac.  Abr. 
,'lbatemenl,  D. 

(c)  Willes,  554.     2  Wils.  367.     1   Bos.    &   P.  60.     1    East, 
542.     2  Chitt.  PI.  590. 


OF  PLEAS  IN  ABATEMENT. 


CHAP.    may  be  fully  identified    by  the  former,  as  by  the 
v.       latter. 


Misnomer,        &  70.  Where  there  are  several  co-defendants,  the 

&c.  of  de-  c  i          r      i 

fendant.  true  proper  name  of  each  of  them  must  be  given. 
Describing  them,  even  when  sued  as  partners,  by 

ch.s,  §60.  the  styje  or  name  Of  tne  co-partnership,  (as  'A.  B. 
&  Co.')  seems  clearly  not  sufficient.  For  the  name 
of  a  co-partnership  is  altogether  arbitrary,  and  may 
not  express  the  proper  name  of  any  one  of  the  indi- 
vidual partners(ce). 

§71.  By  the  common  law,  no  other  personal 
description  of  a  party,  sued  or  suing,  was  required, 
than  his  proper  name,  (including  both  his  name  of 
baptism,  and  surname),  unless  his  dignity,  or  degree, 
were  as  high  as  that  of  knight — in  which  case,  his 
degree  was  a  necessary  addition  to  his  proper  name : 
The  title  of  knight,  and  all  those  above  it,  being 
deemed  parcel  of  the  proper  name(^).  And  this 
rule  extends  to  both  the  plaintiff  and  defendant. 
But  the  statute  of  additions  (1  Hen.  5,  c.  5),  re- 
quires, that  in  all  personal  actions,  appeals  and  in- 
dictments, there  shall  be  added  to  the  name  of  the 
defendant,  his  title,  mystery,  estate  or  degree,  (as 
1  knight'  —  l  gentleman'  —  '  esquire'  —  '  yeoman' — 
'  spinster',  &c.)  and  his  place  of  abode  (the  town, 
hamlet,  &c.)  and  the  county  in  which  he  resides,  or 

(cc)  8  T.  R.  508.     1  Leach's  Cr.  Cases,  240.     1  Chitt.  PI.  256. 
(d)  Bac.  Abr.  Misnomer,  &c.  B.  2.     2  Roll.  Ab.  469.  Comb. 
189. 


OF  PLEAS  IN  ABATEMENT.  257 

has  resided(e).     The  description,  title,  &c.  thus  add-    CHAP. 
ed   to  the  defendant's  name,  is  called  his  *  addition' ;        v. 
and  the  absence  of  this  addition,  or  the  giving  of  a  

,  .  111*1  x  ,P\      Misnomer, 

wrong  one,  in  the  writ,  is  pleadable  in  abatement(/J.  &c.  ofde- 
But  the  addition  of  the  defendant's  degree,  or  mys- 
tery, with  his  present  or  late  place  of  abode  is  held 
sufficient^).  Where  there  are  several  co-defend- 
ants, the  proper  addition  must  be  given  to  each,  ex- 
cept where  husband  and  wife  are  co-defendants — in 
which  case  the  latter  requires  no  addition (h). 

§  72.  But  this  statute  extends  only  to  personal 
actions,  appeals,  and  indictments.  Real  actions  are 
not  within  its  purview ;  probably  because  the  de- 
fendant is  supposed  to  be  sufficiently  identified,  by 
his  proper  name  and  the  possession  of  the  land  in 
question(i). — By  the  'appeals',  mentioned  in  the 
statute,  are  meant  those  criminal  prosecutions,  which 
are  so  called. 

§  73.  At  common  law,  neither  want  of  addition, 
nor  misnomer,  was  pleadable  to  an  indictment  for 
felony  :  The  prisoner  being  identified  by  his  personal 
presence(/c).  But  the  rule,  as  now  altered  by  the 
above  statute  1  Hen.  5,  is  the  same  in  indictments 
for  felony,  as  in  personal  actions.  The  plea  to  such 

(e)  Bac.   Abr.   Misnomer,    &c.    B.   2.     3   Black.  Com.   302. 
Lawes'  PI.  106. 

(/)  lid- 

(g)  2  Ld.  Ray.  1541.     Stra.  556.  816.  924. 

(h)   Bac.  Abr.  Misnomer,  &c.  B.     1   Chitt.  PI.  247. 

(t)  Bac.  Abr.  Misnomer,  &c.  B.  2.     6  Mod.  85. 

(k)  Bac.  Abr.  Abatement,  D.     Indictment,  G.  2. 


258  OF  PLEAS  IN  ABATEMENT. 

CHAP.   ai1  indictment  however,  can   in  general  be  of  little 

v.       avail,   eventually,  to  the  prisoner  ;    since  the  court 

-  will,  as  a  matter  of  course,  detain   him  in  custody, 

&c.of<£'    till  another  indictment    can  be  framed    and  found 

Pendant.  .  ,  .       XJX 

against  mm(/). 

§  74.  Misnomer,  or  want  of  addition,  in  describ- 
ing one  of  two  defendants,  is  not  pleadable  by  the 
other(w).  For  the  former  may,  if  he  pleases,  ad- 
mit himself  to  be  rightly  named  and  described  ;  (as 
he  does  of  course,  by  not  pleading  the  mistake  him- 
self in  abatement)  ;  and  his  co-defendant  cannot  ob- 
ject to  such  admission.  —  The  same  rule  holds  in 
indictments  against  several(w). 

^  75.  If  a  defendant,  in  pleading  misnomer, 
gives  himself,  in  the  commencement  of  his  plea,  the 
same  name  by  which  he  is  sued  ;  (as  if  A.  B.,  when 
sued  by  the  name  of  C.  D.,  begins  his  plea  by  say- 
ing, '  And  the  said  C.  D.  comes  and  defends,'  &c.)  ; 
his  plea  is  ill(o).  For,  by  calling  himself  '  C.  D.', 
in  the  first  instance,  he  is  estopped  to  aver  that  that 
is  not  his  true  name.  He  should  begin,  by  saying, 
'And  A.  B.,  against  whom  the  plaintiff  has  sued  out 
his  writ,  by  the  name  of  C.  D.,  comes,  & 


(/)  2  Hale,  P.  C.  176.  238.     1  Chitt.  Grim.  Law,  203. 
(m)  Bac.  Abr.  Misnomer,  &c.  G.     Abatement,  D. 
(u)  2  Hale,  P.  C.  177.     Bac.  Abr.  Misnomer,  &c.  G. 
(o)  2  Saund.  209.  b.     5  T.  R.  487.     Comb.  188.     Lawes'  PI. 
92.     Carth.  207.     1  Show.  394. 

(p)  lid.     2  Chitt.  PI.  416.  417.     1  Lill.  Ent.  1. 


OF  PLEAS  IN  ABATEMENT.  259 

^  76.     And  if  the  recognizance  of  bail  gives  the     CHAP. 
defendant   the   same    name    by   which    he  is    sued,        v. 
(though  a  wrong  one)  ;  he  is  estopped  to  aver  that  

.  /•    \  T-<          i  f  Misnomer. 

it  is  a  misnomer(^).     Jbor   by  the  entry  of  the  re-  &c.  ofde- 

,   .  i  i  fendant. 

cognizance  in  this  manner,  he  places  upon  the  re- 
cord the  name,  given  him  in  the  writ,  as  his  true 
name.  And  the  rule  is  the  same,  even  though  the 
defendant  himself  does  not  join  in  the  recogni- 
zance (r).  For  although  the  recognizance,  in  such 
a  case,  is  not  in  strictness  the  defendant's  act ;  yet 
being  by  his  procurement,  he  is  concluded  by  it. 

^  77.  If  one  executes  a  specialty,  by  a  wrong 
name  :  it  is  held  that  he  must  be  sued  upon  it,  by 
the  same  name  by  which  the  instrument  is  exe- 
cuted ;  and  that  his  true  name  should  be  added,  un- 
der an  alias(s).  For  he  is  estopped  by  the  deed  to 
deny  the  name,  by  which  he  executed  it ;  and  if 
sued  by  his  true  name,  there  would  be  a  variance 
between  the  deed  and  the  writ. 

&  78.     Misnomer  of  the  plaintiff,  is  also  pleadable  Misnomer 

,      of  plaintiffs. 

in  abatement(T)  :  And  the  plea  may  be  answered, 
by  the  same  replication,  as  when  the  misnomer  is 
of  the  defendant(w).  But  the  want  of  addition,  or 
a  wrong  one,  in  the  description  of  the  plaintiff*,  is 
no  cause  of  abatement,  except  as  at  common  law 
(md.  ^71).  For  the  statute  of  additions  does  not 

(q]  Willes,  461.  1  Salk.  8.  2  Chitt.  PI.  590.  2  New  Rep.  453. 

(r)  2  New  Rep.  453. 

(»)  2  Stra.  1218.     1  Bulslr.  216.     Bac.  Abr.  Misnomer,  B.  1. 

(/)  Com.  Dig.  Abatement,  E.  18.     1  East,  542. 

(u)  1  East,  642 


OF  PLEAS  IN  ABATEMENT. 

CHAP,    extend    to    plaintiffs(v) — because    there   was   sup- 
v.       posed  to  be  no  danger  of  mistakes  in  regard  to  their 
identity. 

§  79.  Misnomer,  &c.  as  such,  is  pleadable  only 
Post.  §  100.  in  abatement(w).  It  is  no  plea  in  bar ;  because  it 
does  not  deny  the  cause  of  action ;  nor  can  it  be  as- 
signed for  error,  unless  it  has  been  pleaded  in  abate- 
ment, and  overruled.  For  if  not  thus  pleaded,  the 
exception  is  waved,  as  all  matters  of  mere  abate- 
ment are,  if  not  pleaded  in  abatement^). 

§  80.  To  a  plea  of  misnomer,  (whether  of  the 
plaintiff,  or  defendant),  it  is  a  good  replication,  that 
at  the  commencement  of  the  suit,  he  was  known 
and  called,  as  well  by  the  name,  by  which  he  sues 
or  is  sued,  as  by  that  set  forth  as  his  true  name,  in 
the  plea(?/). 

^81.  In  the  State  of  Connecticut,  and  probably 
in  many  of  the  United  States,  no  other  addition, 
than  his  place  of  abode,  need  be  given  to  either  of 
the  parties  ;  but  this  must  be  given  to  both  ;  and  of 
course  to  all  the  co-parties,  plaintiffs  or  defendants. 

§  82.  In  concluding  this  head  of  abatement,  it  is 
proper  to  remark,  that  in  the  English  Court  of 

(v)  Bac.  Abr.  Misnomer,  &c.  B.  2. 

(to)  Bac.  Abr.  Misnomer,  &c.  E.  Carth.  124.  Comb.  188. 
1  Bos.  &  P.  40.  6  M.  &  S.  46. 

(x)  6  T.  R.  766.    2  H.  Black.  267.  299.     1  Salk.  2. 

(y)  2  Wils.  367.  1  East,  542.  1  Bos.  &  R  60.  2  Chitt. 
PI.  590.  Willes,  554. 


OF  PLEAS  IN  ABATEMENT. 


Common  Pleas,  and  (when  the  suit  is  by  original),    CHAP. 
in  that  of  the  King's  Bench  also,  pleas  in  abatement,        v. 
founded   upon   the   want,   or   the  falsity,  of  the  de- 
fendant's  addition,  are   now   virtually   abolished,   by 
the  operation  of  a  rule  of  practice,  (established  in 
the  former  of  those  courts,  in  the   11  &  12  Geo.  2. 
and  in  the   latter,  in  the   19  Geo.  3),  ordering  that 
oyer  shall  not  thenceforth  be  granted  of  the  original 
writ(2:).     For  no  addition  is   given,  or  required    to 
be  given,  to  either  party,  in  the  declaration  ;  and  its 
omission  or  falsity,   in   the   writ,   cannot  be  shown, 
without  an  inspection  of  the  writ   itself.     And   as 
oyer   of   the   writ(a),    is   now    unattainable,   in   the 
two   courts   above    mentioned,  under  the  above  rule 
of  court  ;  a  plea,  in  either  of  those   courts,  founded 
upon  the  want  of  addition,   &c.  must  of  necessity 
fail(6).  —  The  effect  of  this  rule,  indeed,  has    been 
the   abolition,   in   those  courts,  of  all    pleas,   which 
cannot  be  verified  without  oyer  of  the  writ.     (Vid. 
post.  §  101.) 

§  83.  Yet  if  any  thing,  which,  in  the  writ, 
would  be  matter  of  abatement,  appears  in  the  de- 
claration; it  may  be  pleaded  to  the  writ  —  the 
above  rule  of  court  notwithstanding.  If,  for  exam- 
ple, there  is  a  misnomer,  or  a  nonjoinder  or  mis- 
joinder  of  parties,  in  the  declaration  ;  the  mistake 
may  be  safely  pleaded,  as  a  fault  in  the  writ.  For 
the  declaration  is  conclusive  against  the  plaintiff, 

(z)  Doug.  227.     1  Saund.  318.  a.  (n.  3.) 
(a)  2  Salk.  701.     Lawes'  PI.  105-6.1  Saund.     318.  a.  (n.  3). 
(6)  1  Saund.  318.  a.  (n.  3.)  Lawes'  PI.  105-6.  1  Chitt.  PI.  440. 
34 


e?$2  OF  PLEAS  IN  ABATEMENT. 

CHAP.  tnat  tne  parties,  and  the  names  given  them,  are  the 
v.  same  in  the  writ,  as  in  itself :  Because  the  plaintiff, 

— — —  by  averring  the  contrary,  would  himself  necessarily 
disclose  a  variance  between  the  declaration  and  the 
writ,  which  would  be  fatal  to  the  suit.  And  thus, 
without  any  examination  of  the  writ,  the  defendant 
may,  in  cases  like  these,  abate  it  through  the  medium 
of  the  declaration. 

84.  When  the  suit  is  commenced  by  bill — 
which  is  itself  considered  as  the  original,  and  of 
which  there  is  no  occasion  for  oyer — the  above 
rule  of  court  has  no  effect. 

And  where — as  in  the  practice  of  the  courts  of 
some  of  the  United  States — the  writ  and  declara- 
tion are  embodied,  as  parts  of  one  and  the  same  in- 
strument, no  such  rule  can  exist(c). 

coverture.  ^  85.  H.  Coverture  of  the  defendant. — If  a 
feme  covert  is  sued  without  her  husband,  she  may 
plead  her  coverture  in  abatement(cc).  This  de- 
fence is  allowed,  for  the  protection  of  her  privilege, 
and  of  the  husband's  rights;  both  of  which  might 
be  violated  by  a  recovery  against  her. 

^  86.  But  this  plea  is  no  defence,  where  the 
husband,  though  actually  living,  is  civilly  dead — 
as,  where  he  is  banished,  or  has  abjured  the  realm, 
or  is  an  alien  enemy,  and  out  of  the  realm,  &c.  For 

(c)   Vid.  5  Mass.  R.  285. 

(cc)  Com.  Dig.  Matement,  F.  2.    Co.  Litt.  132.  b.   1  Salk.  7. 


OF  PLEAS  IN  ABATEMENT.  263 

in  either  of  these  cases,  the  wife  is  in  law  considered  CHAP. 

as  a  feme  sole(d).     And  whenever  she  is,  from  any  v. 
cause,  regarded  in  law  as  sole,  this  plea  cannot  avail 


^  87.  If  a  woman,  being  sued  while  sole,  mar- 
ries pending  the  suit  ;  she  cannot  plead  this  superve- 
nient coverture,  in  abatement,  or  at  all(e).  For  it 
would  be  manifestly  unreasonable,  to  allow  her  to 
defeat,  by  her  own  act,  a  suit  rightly  commenced 
against  her. 

^  88.  When  a  feme  covert  is  sued  alone,  she  can 
plead  her  coverture  only  in  abatement(f)  .  For  the 
defence  does  not  deny  the  right  of  action  ;  and 
therefore,  if  she  omits  to  plead  it  as  a  dilatory  plea, 
she  waives  it,  so  far  as  regards  her  own  privilege, 
and  tacitly  admits  that  she  is  liable  to  be  sue"d 
alone. 

She  must  also  plead  her  coverture  in  person(g)  : 
Because  she  is  legally  incapable  of  appointing  an 
attorney. 

(d)  Com.  Dig.  Abatement,  F.  2.  Co.  Litt.  132.  b.  133.  a.  1 
Salk.  116.  Vid.  ante,  ch.  5.  §  51. 

(dd)  Vid.  3  Campb.  124.  15  Mass.  R.  31.  6  Pick.  89.  5 
Ib.  461.  11  East,  304,  nolis  Day.  2  Kent's  Com.  132.  214.  n. 
3  Barn.  &  Cress.  291. 

(c)  Bac.  Abr.  Abatement,  G.  1  Lill.  Ab.  526.  2  Stra.  811. 
2  I,d.  Ray.  1525.  Cro.  Jac.  323.  1  Ve£.  182.  2  Roll.  Rep.  53. 

(/)  Com.  Dig.  Abatement,  F.  2.     3  T.  R.  631.     Carth.  12. 

(g)  2  Saund.  209.  c.  (n.  1.)  1  Lill.  Ent.  1.  2  Chitt.  PI.  415. 
425! 


OF  PLEAS   IN  ABATEMENT. 


CHAP.        §  ^9.  But  she  can,  by  no  admission   or  omission, 
v.        waive  any  right  of  her   husband  :     And  therefore,  if 
--  —  she  omits  to  plead  her  coverture,    he   may,  at  any 
time,  come  in  and  plead  it  in  bar(h). 

And  if  both  of  them  omit  to  plead  it,  and  judg- 
ment is  given  against  her;  the  judgment  maybe 
reversed,  by  writ  of  error,  in  which  they  must  both 
join,  as  plaintiffs  in  error(z).  If  the  writ  of  error 
is  in  the  name  of  either  of  them  alone,  it  may  be 
quashed(k).  For  the  wife  cannot  prosecute  it 
alone,  by  reason  of  her  legal  disability  ;  nor  can 
the  husband  alone,  because  her  rights,  as  well  as  his 
own,  are  involved  in  it. 

Death  of  §90.  III.  Death  of  Parties.  —  By  the  common 
law,  the  death  of  a  sole  plaintiff  or  sole  defendant, 
pendente  lite,  abates  the  suit(7)  :  There  being,  after 
such  an  event,  but  one  party  to  the  action.  And  if, 
after  the  death  of  either  party,  final  judgment  should 
be  given,  for  or  against  him  ;  it  would  be  errone- 
ous(m)  —  as  being  for  or  against  a  party  not  in  esse. 
But  by  the  statute  17  Car.  2,  c.  28,  it  is  enacted, 
that  the  death  of  either  party,  '  between  verdict  and 
judgment,  shall  not  be  alleged  for  error,  so  as  judg- 

(k)  Bac.  Abr.  Abatement,  G.     Sty.  280.      1  Salk.  400.     3   T. 
R.  631.     5lb.  681. 

(»')  lid.     3  Esp.  Rep.  19.     4  Mass.  R.  661. 

(fc)  3  Esp.  Rep.  19.     Bac.  Abr.  Error,  B. 

(/)  Bac.  Abr.  Abatement,  F.     Com.  Dig.  Abatement,  H.  32. 

(m)  Carth.  338-9.     T.  Ray.  59.  463.    Bac.  Abr.  Pleas,  &c.  Q. 


OF  PLEAS  IN  ABATEMENT.  265 

ment  be  entered  within  two  terms,  after  such  ver-    CHAP. 
dict'(?i)  nunc  pro  tune.  v. 


§91.  By  the  common  law  also,  if  one  of  several 
plaintiffs  dies,  pending  the  suit ;  it  will,  in  most  ca- 
ses, abate(o).  For  by  joining  in  the  suit,  they  assert 
a  joint  right  of  recovery,  which,  as  such,  is  destroyed 
by  the  death  of  either  of  them. 

§  92.  But  this  last  rule  does  not  apply,  in  its  full 
extent,  to  such  personal  actions  as  admit  of  summons 
and  severance,  and  in  which  an  entire,  indivisi- 
ble thing  is  to  be  recovered  (9).  For  in  such  ac- 
tions, after  one  of  two  co-plaintiffs  has  been  sum- 
moned and  severed,  he  ceases  to  be  a  party ;  and 
the  other  becomes  a  sole  plaintiff,  prosecuting  for 
the  whole  amount,  or  matter  in  demand,  and  there- 
fore if  the  severed  plaintiff  afterwards  dies,  pending 
the  action,  his  death  has  no  effect  upon  the 
suit.Q?). 

(»)  Bac.  Abr.  Abatement,  F. 

(o)  Bac.  Abr.  Abatement,  F.     Joint-Tenants,  &c.  K.     10  Co. 
134.     6  Ib.  26.     Com.  Dig.  Abatement,  H.  33. 
(p)  Bac.  Abr.  Abatement,  F.     Cro.  Eliz.  652. 

(9)  Summons  and  severance  is  a  proceeding,  by  which  one  of 
several  persons  named  as  co-plaintiffs,  in  a  writ,  is,  on  his  neglect- 
ing to  appear  and  prosecute,  summoned  to  appear,  &c.  and  if  he 
refuses  to  join  in  prosecuting  the  suit,  is  separated  from  it,  by  a 
judgment  of  severance.  As  to  what  cases  admit  of  summons  and 
severance,  see  Off*.  Ex'r.  96.  104.  6  Co.  25.  Bac.  Abr.  Sum- 
mons  $  Severance,  F.  Co.  Litt.  139. 


266  OF  PLEAS  IN  ABATEMENT. 

CHAP.        If  one  of  several,  named  as  co-plaintiffs,  was  dead 
v.        at  the  issuing  of  the  writ ;    the  fact  may  be  pleaded 
in  abatement/a).     For  it   falsifies  the  writ. 

Death  of  J 

parties. 

§  93.  If  one  of  several  co-defendants  dies,  pend- 
ing the  suit ;  his  death  is,  in  general,  no  cause  of 
abatement,  even  by  the  common  law(r).  For  by 
being  sued  together — (a  proceeding  in  which  they 
are  passive) — co-defendants  do  not,  like  co-plaintiffs, 
either  assert  or  admit  any  thing,  which  requires  them 
all  to  act  or  proceed  jointly :  And  hence,  on  the 
death  of  one  of  them,  if  the  cause  of  action  is  such, 
as  would  survive  against  the  survivors,  (as  is  almost 
universally  the  case)  ;  the  plaintiff  may,  by  suggest- 
ing the  death  of  the  former  upon  the  roll,  proceed  in 
the  same  suit,  against  the  latter. 

§  94.  The  inconvenience  of  abatement,  by  the 
death  of  parties,  is  now,  in  a  great  measure,  remedi- 
ed, by  the  statute  17  Car.  2,  c.  8,  and  by  the  8  &  9 
W.  3,  c.  2,  §^  6  &  7 ;  by  which  last  it  is  enacted, 
1  that  if  there  be  two  or  more  plaintiffs  or  defend- 
ants, and  one  or  more  of  them  should  die,  if  the 
cause  of  such  action  should  survive  to  the  surviving 
plaintiff  or  plaintiffs,  or  against  the  surviving  de- 
fendant or  defendants  ;  the  writ,  or  action,  shall  not 
be  thereby  abated.  But  such  death  being  sug- 
gested upon  the  record,  the  action  shall  proceed  at 
the  suit  of  the  surviving  plaintiff  or  plaintiffs,  against 
the  surviving  defendant  or  defendants' :  And  that 

(q)  Bac.  Abr.  Abatement,  F. 

(r)  Hardr.  113.  151.    Cro.  Car.  426.  Bac.  Abr.  Abatement,  F. 


OF  PLEAS  IN  ABATEMENT.  267 

if  any  sole  plaintiff  happen  to  die,  after  an  interlocu-    CHAP. 
tory  judgment,  and  before  a  final  judgment  obtained        v. 

therein  ;  the   said   action   shall  not  abate   by   reason  

thereof:  if  such  action   might,  originally,  be  prose-  Death  of 

parties. 

cuted  or  maintained  by  the  executors  or  administra- 
tors of  such  plaintiff;  and  if  the  defendant  die,  after 
such  interlocutory  judgment,  and  before  final  judg- 
ment therein  obtained,  the  said  action  shall  not 
abate,  if  such  action  might  originally  be  prosecuted 
or  maintained  against  the  executors  or  administra- 
tors of  such  defendant ;  and  the  plaintiff,  (or  if  he 
be  dead  after  such  interlocutory  judgment),  his  ex- 
ecutors or  administrators  shall  and  may  have  a  scire 
facias  against  the  defendant,  if  living  after  such 
interlocutory  judgment,  (or  if  he  died  after,)  then 
against  his  executors  or  administrators,  to  show 
cause  why  damages,  in  such  action,  should  not  be 
assessed  and  recovered  by  him  or  them.' 

^  95.  Under  the  former  of  these  statutes,  (that 
of  17  Car.  2),  the  death  of  a  party,  after  verdict, 
does  not  abate  the  suit ;  but  judgment  in  pursuance 
of  the  verdict,  may  be  entered,  (within  the  time 
prescribed,  by  the  act),  as  if  the  death  had  not  in- 
tervened^). And  under  the  latter  statute  (8  &  9 
W.  3),  if  a  sole  plaintiff  dies,  after  an  interlocutory 
judgment(lO),  and  before  final  judgment  in  an  ac- 

(s)  1  Salk.  42.     1  Sid.   385.     Toll,  on  ex'rs.  442-3. 

(10)  The  interlocutory  judgment,  contemplated  in  the  above 
enactment,  is  such  an  one,  as  leaves  nothing  more,  to  be  ascer- 
tained, than  the  amount  to  be  recovered,  in  damages,  or  otherwise 


2(38  OF  PLEAS  IN  ABATEMENT. 

CHAP.     ti°n5  tne  cause  of  which  would  have  survived  to  his 
v.        personal    representatives — or    if    a    sole    defendant 

dies,  after  such  a  judgment  in  an  action,  the  cause 

parties.  of  which  would  have  survived  against  his  personal 
representatives^  1) — the  suit  shall  not  abate;  but 
on  a  sci.  fa.  prayed  out,  as  prescribed  in  the  act, 
the  suit  may  proceed  to  final  judgment :  And  if  one 
or  more  of  several  co-plaintiffs  die,  pending  an 
action,  the  cause  of  which  would  have  survived 
to  the  surviving  plaintiffs — or  if  one  or  more  of 
several  co-defendants  die,  pending  an  action,  the 
cause  of  which  would  have  survived  against  the  sur- 
viving defendants  :  the  suit  shall  not,  in  either  case, 
abate ;  but — such  death  being  suggested  upon  the 

— as,  where  a  demurrer  to  the  declaration,  or  to  the  plaintiff's 
evidence,  has  been  overruled — or,  where  the  defendant  has  sub- 
mitted to  a  judgment  by  default,  non  swn  informal  us,  nil  dicit,  &c. ; 
in  each  of  which  cases,  nothing  more  is  necessary  to  be  done,  as 
preparatory  to  final  judgment,  than  to  ascertain  how  much  the 
plaintiff  is  entitled  to  recover.  (Vid.  1  Lill.  Ent.  647.  6  Mod. 
144.  4  T.  R.  431.  Toll,  on  Ex'rs.  443.)  The  stutute  of 
Connecticut  prevents  the  suit  from  abating,  when  the  death  hap- 
pens in  any  stage  of  the  suit — whether  after  or  before  an  inter- 
locutory judgment. 

(11)  When  a  cause  of  action  is  such  as,  on  the  death  of  either 
of  the  sole  parties  to  it,  might  have  been  originally  prosecuted  by 
or  against  his  personal  representatives,  it  is  one,  which  icould 
survive  to  or  against  such  representatives,  within  the  meaning  of 
the  above  distinctions  :  But  when  it  could  not  have  been  thus 
originally  prosecuted,  it  is  one  which  would  not  thus  survive.  But 
what  particular  causes  of  action  do,  or  do  not,  thus  survive,  is  an 
inquiry,  which  falls  appropriately  under  a  different  title — that  of 
Executors  and  Administrators. 


OF  PLEAS  IN  ABATEMENT.  269 

record — the  action  shall  proceed  between  the  surviv-    CHAP. 
ing  parties.  v. 

^  96.  It  will  be  perceived,  that  the  second 
clause  in  the  above  statute,  of  W.  3,  (viz.  that  which 
provides  against  abatement,  by  the  death  of  a  sole 
party),  extends  only  to  personal  actions — i.  e.  such  as 
survive  to  or  against  personal  representatives.  Real 
actions  therefore  still  abate,  as  at  common  law,  on 
the  death  of  a  sole  plaintiff  or  defendant  (ante  ^  90). 
But  real  actions,  in  which  there  are  several  co-plain- 
tiffs or  co-defendants,  and  of  which  the  causes  are 
such,  as  survive  to  or  against  the  surviving  par- 
ties, are  within  the  purview  of  the  first  clause  of 
the  act. 

^  97.  IV.  Variance. — There  are  divers  instances,  Variance. 
or  particulars,  in  which  variance  is  pleadable  in  abate- 
ment— as  where  the  count  varies  from  the  writ — or, 
where  the  writ  varies  from  the  record,  specialty,  or 
instrument,  on  which  the  action  is  brought(i).  For 
in  the  one  case,  the  count  does  not  maintain  or  pur- 
sue the  writ ;  and  in  the  other,  the  writ  is  not  adapt- 
ed to  the  cause  of  action. 

§  98.  As  to  variance  between  the  writ  and  the 
count,  this  diversity  is  to  be  observed :  If  the  va- 
riance is  in  matter  of  mere  form,  (as  in  time,  or 
place,  when  that  circumstance  is  immaterial,  or  in 

(/)  Com.  Dig.  Abatement,  G.  1.  H.  7.  9.      6  Co.  14.     2  Wils. 
85.  395.     Cro.  Eliz.  722.     1  H.  Black.  249. 
35 


CtfVvf- 


27Q  OF  PLEAS  IN  ABATEMENT. 

CHAP.    anJ  °ther  particular  which  is  so) ;    advantage    can 
v.       be  taken  of  it,  only  by  plea  in  abatement(u)  :   but  if 

the  variance   is  in  matter  of  substance — (as  if  the 

writ  sounds  in  contract,  and  the  declaration  in  tort, 
or  e  converse — or  if  the  writ  demands  one  thing,  or 
subject,  and  the  declaration  another)  ;  advantage  may 
be  taken  of  it,  even  by  motion  in  arrest  of  judg- 
ment^). For  as  it  is  the  ivrit,  which  gives  authority 
to  the  court  to  proceed  in  any  given  suit ;  it  is  obvi- 
ous, that  the  court  can  have  no  authority  to  hear  and 
determine  a  cause,  substantially  different  from  that 
mentioned  in  the  writ. 

^  99.  In  the  states  of  Connecticut  and  Massachu- 
setts^/;), it  has  heretofore  been  customary  to  plead 
in  abatement  any  variance  between  the  record  or 
instrument  declared  upon,  and  the  description  of  it  in 
the  declaration.  But  the  more  proper  mode  of  tak- 
ing exception  for  such  a  variance,  is  either  by  ob- 
jecting to  the  record,  &c.  as  evidence,  under  the 
general  issue — and  in  that  way,  compelling  a  non- 
suit(.r)  (because  the  record  or  writing,  offered  in 
evidence,  will  appear  to  be  a  different  one  from  that 
declared  upon)  ;  or  by  reciting  it  upon  the  record, 
on  oyer,  and  then  demurring  to  the  declaration^)  : 
This  latter  course  being  justified,  on  the  ground  that 

(«)  Yelv.  120.     Latch,  173.     Bac.   Abr.  Abatement,  I. 

(»)  Hob.  279.     Cro.  Eliz.  722. 

(w)  Story's  PI.  59.  60. 

(a?)  4  T.  R.  612.  687-8.  1  Ib.  656.  1  Bos.  &  P.  7.  1 
Saund.  154.  n.  Doug.  665.  Cowp.  766-7. 

(T/)  1  Saund.  317.  Com.  Dig.  Pleader,  2.  3.  Hob.  18. 
Lawes'  PI.  98-9. 

. 


' 


OF  PLEAS  IN  ABATEMENT.  271 

the  instrument,  &c.  thus  recited,  on  oyer,  becomes  in    CHAP. 
effect,  part  of  the  declaration(z).  v. 

^  100.  Though,  as  heretofore  stated,  no  advan- 
tage can  be  taken  of  misnomer,  as  such,  except  by 
plea  in  abatement  ;  yet  when  misnomer  occasions  a 
variance  (as,  if  A.  B.,  having  executed  a  bond  by  his 
true  name,  is  sued  upon  it,  and  declared  against  by 
the  name  of  C.  D.)  ;  advantage  may  be  taken  of 
the  mistake,  as  a  variance,  in  either  of  the  two 
modes  last  before  mentioned  :  i.  e.  under  the  gener- 
al issue,  or  by  demurrer,  on  oyer(a)  :  Though  if  the 
mistake  is  treated,  by  the  defendant,  as  a  misnomer, 
(in  which  case,  no  use  is  made  of  the  instrument,  in 
evidence  or  otherwise)  ;  he  must  plead  it  in  abate- 
ment. 


Pleas  in  abatement,  for  any  variance  be- 
tween the  writ  and  the  count,  are  now,  however, 
practically  abolished  in  England,  in  C.  B.  and 
(where  the  suit  is  by  original)  in  B.  R.  also,  by  a 
rule  of  practice  heretofore  mentioned(6),  refusing 
oyer  of  the  original  writ.  And  the  operation  of  this 
rule  extends  to  all  pleas  in  abatement  which  cannot 
be  proved  without  an  examination  of  the  original 
writ(c). 

(2)  1  Vent.  43.     1  Saund.  316.     Carth.  513.   6  Mod.  28.  237. 
(a)  4  T.  R.  611.  612.     3  Bos.  &  P.  559.     1  Campb.  195. 
(6)  Ante,  Note  8  to  §  64,  and  §  82. 

(c)  Lawes'  PI.  97.  105.     1  Saund.  318.  (n.  3.)     3  Bos.  &  P. 
395.     7  East,  383.     6  T.  R.  363.     1  Chitt.  PI.  440. 


272 


OF  PLEAS  IN  ABATEMENT. 


CHAP. 
V. 

V.  Nonjoinder  and  Misjoinder  of  Parties. 

^  102.  In  what  cases,  two  or  more  persons  ought 
or  ought  not  to  be  joined  as  co-parties,  (either  as 
plaintiffs  or  defendants),  in  one  suit,  has  been  alrea- 
dy explained  (ante,  ch.  4,  §  52  to  78).  The  present 
inquiry  is,  in  what  manner  advantage  is  to  be  taken  of 
a  mistake,  in  respect  to  the  proper  parties. 

Nonjoinder        ^  JQ3.  Under  this  head,   it  may  be  laid  down  as 

and  misjom-  J  \ 

fieers°f  par  a  universal  ru'e3  applicable  both  to  actions  ex  con- 
tractu  and  ex  delicto,  that  if  one  person  sues  alone, 
when  the  right  of  action  is  in  two  or  more,  jointly(J) 
— or  if  twro  or  more  sue  as  co-plaintiffs,  W7hen  the 
right  of  action  is  in  one  of  them  only(e)  ;  the  mis- 
take is  pleadable  in  abatement:  Because,  without 
reference  to  the  merits,  the  suit  is,  in  both  cases, 
brought  in  an  improper  manner,  in  regard  to  the  par- 
ties. 

^  104.  On  the  other  hand,  if  one  is  sued  alone, 
when  by  law  another  should  have  been  joined  with 
him,  as  co-defendant — or  if  two  or  more  are  sued 
together,  when  by  law  the  action  should  have  been 
brought  against  one  of  them  only  ;  the  nonjoinder 

(d)  Com.  Dig.  Abatement,  E.  8-14.     1  Salk.  4.     7  T.  R.  243. 
1  Saund.  291.  (n.  4.)     Co.  Lilt.  164.  a.  189.  a.  195.  b.  698.  a. 

(e)  Com.  Dig.  Abatement,  E.  15.  Cro.  Eliz.  143.   1  Leon.  315. 


OF  PLEAS  IN  ABATEMENT.  273 

in  the  one  case,  and  the   misjoinder  in  the  other,  is,    CHAP. 
in  all  cases,  pleadable  in  the  same  manner. (f).  v. 

^  105.  In  some  cases,  falling  under  the  two  last  &c"JofnPar- 
rules,  the  exception  can  be  taken  only  by  plea  in 
abatement :  In  others,  it  may  be  taken,  at  the  elec- 
tion of  the  defendant,  either  by  pleading  in  abate- 
ment, or  under  the  general  issue ;  or,  as  the  case  may 
be,  by  demurrer  on  oyer — by  motion  in  arrest  of 
judgment — or  by  writ  of  error. 

^  106.  And  for  the  purpose  of  determining,  in 
any  given  case,  whether  a  mistake  in  the  joinder  or 
nonjoinder  of  a  party,  is  pleadable  only  in  abate- 
ment— or  whether  advantage  may  be  taken  of  it, 
under  the  general  issue — the  following  distinction, 
it  is  believed,  will  be  found  to  furnish  the  true  cri- 
terion : — 

If  the  proof,  which  supports  the  objection  arising 
from  the  nonjoinder  or  misjoinder  of  a  party,  goes 
in  denial  or  disproof  of  the  declaration,  or  of  any 
material  allegation  in  it ;  advantage  may  be  taken 
of  the  mistake,  as  well  under  the  general  issue,  as  by 
plea  in  abatement  (for  whatever  denies  the  decla- 
ration, goes  to  support  the  general  issue) :  But  if 
the  proof,  which  shows  the  mistake,  is  not  inconsist- 
ent with  any  material  part  of  the  declaration  ;  the 
exception  can  be  taken,  only  by  a  plea  in  abatement  : 
Because  whatever  does  not  contradict  the  declara- 

(/)  5  Burr.  2611.  1  Saund.  153.  (n.  1.)  291.  b.  (11.  4.)  5  T.  R. 
651.  Com.  Dig.  Abatement,  F,  6.  2  East,  574.  1  Chitt.  PI.  75-6. 


274  OF  PLEAS  IN  ABATEMENT. 

CHAP.    ti°n>  does  not  conduce    to  support   the  general  is- 
v.        sue(12). 

&™iflpiain-       To  apply  this  distinction  ;  first,  to  the  nonjoinder 

tiffs  :  ...  ,,  .  ,     .       .  ,y, 

or  misjomder  of  parties,  as  plaintiffs  — 


t?act.n~ 


%  107.  In  an  action  on  CONTRACT,  if  one  of  the 
co-parties  to  it  sues  alone,  when  the  right  of  action 
is  in  himself  and  another  —  or  if  two  or  more  sue 
together,  when  the  right  of  action  is  in  one  of  them 
only  ;  advantage  may  be  taken  of  the  mistake,  as 
well  under  the  general  issue,  as  by  plea  in  abate- 
ment^). If  therefore,  upon  an  obligation  or  pro- 
mise, made  to  A.  and  B.  jointly,  A.  sues  alone,  as  on 
a  contract  made  with  himself  only  —  or  if  on  a  con- 
tract made  with  A.  only,  he  and  B.  sue,  as  on  a  con- 
tract made  with  both  of  them  ;  the  suit  may  be  de- 
feated, in  either  of  the  above  modes.  For  in  each 
of  these  cases,  there  is  a  variance  :  The  contract, 
offered  in  evidence,  being  not  the  same  as  that  declar- 
ed upon.  In  other  words,  the  fact,  (or  proof),  that 
the  right  of  action  is  joint,  in  the  former  case,  or  that 
it  is  not  so,  in  the  latter,  goes  in  disproof  of  the  de- 
claration. 

(g)  1  Saund.  291.  f.  (n.  4.)  1  Chitt.  PI.  209,  &  seq.  1 
Taunt.  7.  1  Bos.  &  P.  75.  2  Stra.  820.  1  146.  2  T.  R.  282. 
5  Ib.  709.  1  Esp.  Rep.  183.  Bull.  N.  P.  152.  Peake  Ev. 
(2d  ed.)  205.  2  Mass.  R.  510.  6  Pick.  360. 

(12)  It  is  not  pretended  that  all  the  cases  conform  to  this  dis- 
tinction ;  but  on  principle,  it  appears  to  be  the  only  correct  one. 


OF  PLEAS  IN  ABATEMENT.  275 

^  108.  And  if  in  either  of  the  two  last  cases,  the    CHAP. 
action  is  founded  upon  a  written  instrument ;  advan-        v. 

tage  may  be  taken  of  the  mistake,  not  only  in  either  

of  the  two  modes  just  mentioned,  but  in  another  also  :  Nonjoinder, 

&c.  of  plain- 
Viz,   by  praying;     over    of   the    instrument,   reciting  tiffs: 

*''•.''  .In  contract  : 

it,  verbatim,  upon  the  record,  and  demurring  to 
the  declaration(A).  For  it  is  a  general  principle, 
that  a  written  instrument,  pleaded  by  one  party, 
when  thus  recited  on  the  record  by  the  other,  be- 
comes parcel  of  the  former  party's  pleading. 

§  109.  And  if  in  an  action,  on  contract,  brought 
by  a  sole  plaintiff,  it  appears,  upon  the  face  of  the 
declaration,  or  of  any  other  pleading  on  the  plaintiff's 
part,  that  another  ought  to  have  been  joined  as  co- 
plaintiff;  the  mistake  is  incurable,  even  by  verdict(i). 
If  therefore,  in  an  action  of  debt,  covenant  broken, 
or  assumpsit,  brought  by  A.  alone,  it  appears  from 
his  own  pleading,  that  the  contract  was  made  with 
himself  and  B.  jointly,  and  that  B.  is  still  living, 
(as  he  is  presumed  to  be,  unless  the  contrary  ap- 
pears, in  the  declaration)  ;  the  defendant  may  demur, 
without  reciting  the  contract ;  or  may,  after  verdict, 
move  in  arrest  of  judgment,  or  reverse  a  judgment 
against  him,  on  writ  of  error(/c).  For  in  this  case, 
as  it  appears  from  the  plaintiff's  own  showing,  that 
he  alone  has  no  right  of  action ;  the  defendant  is  not 

(/*)  1  Saund.  153.  (n.  1.)  291.  f,  (n.  4.)  1  Bos.  &  P.  67. 
1  Chitt.  PI.  209. 

(t)  1  Saund.  153.  (n.  1.)  291.  b.  (n.  4.)  Esp.  Dig.  304.  2 
Stra.  1146.  1  Bos.  &  P.  67.  74.  1  East,  497. 

(fc)  lid. 


276  OF  PLEAS  IN  ABATEMENT. 

CHAP,    under  the  necessity  of  showing  the  mistake,  by  plead- 
v.       ing  the  fact  which  has  occasioned  it. 

kcTofpiain-       And  undoubtedly  the  same  rule  must  apply  to  an 
in  contract:   tion,     brought    by     two     plaintiffs,    on    a    contract 

which  appears,  from  their  own    pleading,    to    have 

been  made  with  one  of  them  only. 

§  110.  But  the  general  rule,  that  if  one  of  two 
persons,  having  a  joint  right  of  action  ex  contractu, 
sues  alone,  advantage  may  be  taken  of  the  mistake, 
under  the  general  issue,  does  not  extend  to  actions 
brought  by  one,  suing  in  a  representative  capacity. 
Hence,  if  one  of  two  co-executors  sues  alone,  on  a 
contract  made  with  their  testator,  advantage  can  be 
taken  of  the  nonjoinder  of  the  other  only  by  plea  in 
abatement(l).  For  as  the  executors  are  not  parties 
to  the  contract ;  the  nonjoinder  of  one  of  them  occa- 
sions no  variance,  and  does  not  in  any  respect  involve 
a  contradiction  of  the  declaration :  Inasmuch  as  the 
fact  that  there  is  another  executor,  who  should  have 
been  joined  as  co-plaintiff,  is  not  inconsistent  with 
the  description,  in  the  declaration,  of  the  contract 
made  with  the  testator. 

in  ton.  ^111.  In  an  action  EX  DELICTO,  if  one  sues  alone, 

when  another  should  have  been  joined — (as  where 
one  of  two  joint- tenants,  or  of  any  two  persons, 
whose  joint  right  has  been  violated  by  a  tort,  sues 
for  it,  without  joining  the  other) — advantage  can 

(/)  1  Saund.  291.  g.  (n.  4.)  3  T.  R.  558.  1  Chitt.  PI.  8, 
note  (g)  13. 


OF  PLEAS  IN  ABATEMENT. 


be   taken  of  the   nonjoinder  of  the  latter,  only  by    CHAP. 
plea  in  abatement(m)  :  Because   the   fact,  that  ano-        v. 
ther  was   interested  jointly  with  the   plaintiff,   does 
not  go  in  support  of  the  general  issue.     For  proof  de°r"J&lc"  of 
that  the  right  violated  was  joint,   is  no  proof  that  ETtort: 
the  defendant  has  not  injured  the   plaintiff's  proper- 
ty :  Nay,  it  admits  that  fact  ;  and  shows  merely  that 
the  injury  was   not   to   his   sole   property.     But  this 
latter  fact  does  not  disprove  the  declaration. 


In  this  last  case  however,  the  defendant 
may  prove,  under  the  general  issue,  the  interest  of 
the  other  party,  who  is  not  made  co-plaintiff  in  the 
suit  —  not,  indeed,  for  the  purpose  of  defeating  the 
action  ;  but  for  that  of  taking  off  a  moiety  of  the 
damages(ii).  For  otherwise,  the  plaintiff  might 
recover  damages  to  the  whole  amount  of  the  injury; 
and  still  leave  the  defendant  liable,  for  a  moiety  of 
them,  to  the  other  party  in  interest(o). 

§  113.  If  two  sue  together,  in  tort,  when  the 
right  of  action  is  in  one  of  them,  only  —  (as  if,  for 
a  trespass  upon  the  sole  property  of  A.,  he  and  B. 
sue,  as  co-plaintiffs)  ;  advantage  of  the  misjoinder 
may  be  taken,  either  in  abatement,  or  under  the 

(w)  6  T.  R.  766.  1  Saund.  291.  f.  g.  h.  (n.  4.)  Cro.  Eliz.  554. 
Godb.  172.  Lutch,  152.  5  Co.  18.  b.  5  Ea,<*,  407.  2  Stra.  820. 
1  Johns.  R.  471.  6  Ib.  108.  1  Wend.  380.  6  Mass.  R.  462.  2 
Ib.  511.  11  Ib.  419. 

(n)  5  East,  407.     Peake  Ev.  (2d  ed.)  205. 

(o)  7  T.  R.  279. 

36 


CHAP, 
v. 


Nonjoinder, 

&c.  of  de- 


In  contract 


OF  PLEAS  IN  ABATEMENT. 

general  issue(p)  :  Because  the  fact,  that  A.  is  the 
sole  owner  of  the  property,  contradicts  the  declara- 
tion  ;  since  it  proves  that  the  trespass  committed, 
was  not  upon  joint  property  of  A.  and  B.,  and  con- 
sequently, is  not  the  trespass  complained  of. 

As  to  the  joinder  or   nonjoinder  of  defendants  — 
^  1  14.    In   an  action   on  contract,  it  one   issued 

J 

alone,  where  another    ought   by  law  to  have  been 

•/ 

made  co-defendant  with  him  —  (as  if  A.  is  sued 
alone,  on  a  joint  obligation  or  promise,  made  by 
himself  and  B.)  ;  advantage  can  be  taken  of  the 
nonjoinder  of  B.  only  in  abatement  ;  unless  the  mis- 
take appears,  (as  hereafter  mentioned),  from  the 
plaintiffs  own  pleading(q).  For  the  obligation  is 
A*s  act,  though  not  his  sole  act  ;  and  the  promise  is 
his,  though  not  his  sole  promise.  The  fact  then, 
that  B.  is  a  co-obligor,  or  co-promissor  with  A.,  does 
not  prove  that  the  obligation,  in  the  one  case,  is  not 
A's  act,  nor  that  A.  did  not  promise,  in  the  other(13)  ; 
and  therefore  does  not  disprove  the  declaration. 

(p)  Cro.  Eliz.  143.  473.  Gouldsb.  77.  Clayt.  121.  Bac.  Abr. 
Tresp.  I.  2.  (3).  Lacy  v.  Barns  $  al.  Sup.  C.  (Connecticut.) 
1805.  M.  S.  6  Pick.  222.  Gow.  on  Partnership,  159. 

(9)  5  Burr.  2611.  2  Black.  Rep.  947.  5  T.  R.  651.  7  Ib. 
313.  1  Saund.  291  b.  (n.  4.)  2  N.  Rep.  365.  Cowp.  832.  5  Co. 
119.  1  Bos.  &  P.  72.  L18  Johns.  R.  459.  ConL  2  Salk.  440. 

(13)  It  is  suggested  by  Mr.  Serjeant  Williams,  (I  Saund.  291. 
f.  g.  (n.  4.),  that  since  the  nonjoinder  of  one  of  two  joint  prom- 
issors  as  defendant,  is  held  to  be  only  matter  of  abatement,  the 
rule  ought,  for  the  sake  of  consistency,  to  be  the  same  as  to  joint 


OF  PLEAS  IN  ABATEMENT.  279 

The   rule  is  the  same,  and  for  the  same  reason,     CHAP. 
where   two  only  are  sued  upon  a  joint  and  several        v. 

contract,  made  by  three,  or  more(r).     For  the  fact,  

that  another  or  others  bound  themselves  by  the  same  &™Jofnder' 
contract,  does  not  prove  that  the  defendants  did  not 
contract,  as  stated  in  the  declaration. 

<$  115.  But  in  an  action  on  contract,  if  it  ap- 
pears from  the  face  of  the  declaration,  or  of  any 
other  pleading  on  the  part  of  the  plaintiff,  that  a 
person,  not  made  defendant  in  the  suit,  was  a  joint 
contractor  with  the  defendant,  and  that  such  person 
is  still  living,  (as  he  must  be  presumed  to  be,  unless 
the  contrary  is  alleged) ;  the  nonjoinder  of  him  as 
defendant,  is  a  good  ground  of  demurrer,  or  motion 

(r)  1  Saund.  291.  e.  (n.  4.)  Bro.  Ab.  Obligation,  94.  Yelv. 
27.  a.  note.  1  Peters,  73. 

promissees ;  i.  e.  that  the  nonjoinder  of  one  of  two  joint  prom- 
issees  as  plaintiff,  should  be  pleadable  in  abatement  only.  But 
with  submission,  are  not  the  two  cases  essentially  different?  If 
A.  &  B.  make  a  joint  promise,  it  is  nevertheless  true,  that  each 
of  them  promises  :  And  if  so,  it  follows,  that  a  declaration  on 
the  promise,  against  A.  alone,  alleging  that  he  promised,  is  not 
disproved  by  the  admission,  that  B.  promised  jointly  with  him. 
But  if  a  promise  is  made  to  A.  &  B.  jointly,  it  would  seem  not 
correct,  to  say  that  (here  is  a  promise  to  each  of  them  :  And  there- 
fore, a  declaration  by  A.  alone,  alleging  the  promise  to  have  been 
made  to  him,  without  naming  B.  as  a  co-promisee,  is  falsified,  by 
proof  that  the  promise  was  made  to  both  of  them  jointly.  In 
other  words,  there  is  a  variance  between  the  declaration  and  the 
proof. — Such,  at  any  rate,  is  the  principle  of  the  distinction  recog- 
nized by  the  authorities — a  distinction,  which,  it  is  believed,  is  not 
'  without  a  difference.' 


280  OF  1>LEAS  LN   AiiATEAIKNT. 

CHAP.    m   arrest  of  judgment — and   (if  judgment  be  given 
v.        for  the  plaintiff),  may  be  assigned  for  error(s).     For 
in  this  case,    the   pleading   of    the  plaintiff   himself 


Nonjoinder,        1  .     ,  , 

&C.  of  de-    shows,  that  he  has  no  right  to  recover  in  the  suit,  as 

fendants  :         • ,    •      T  7  ,  , 

in  contract:  it  is  brought ;  and  as  the  mistake  appears  upon  the 
record,  by  his  own  showing ;  there  is  no  need  of  the 
defendant's  pleading  it.  (Vid.  ante,  §  109.) 

§116.  If,  on  a  contract  made  by  one  person 
only,  he  and  another  are  sued,  as  upon  a  contract 
made  by  both,  the  misjoinder  is  a  good  ground  of 
defence,  under  the  general  issue(t).  For  the  con- 
tract made  is  not  the  same,  as  that  declared  upon. 
The  proof  of  the  former  therefore  disproves  the 
declaration. 

And  in  an  action  against  two  as  joint  contractors 
— as  in  assumpsit  against  A.  &  B.  as  joint  promis- 
sors — if  the  jury  find  that  A.  promised,  but  that  B. 
did  not ;  A.  may  arrest  the  judgment(w).  For  the 
contract  declared  upon,  is  disproved,  by  the  ver- 
dict^). And  when  the  action  is  thus  brought 
against  tivo,  upon  a  contract  made  by  one  of  them 
only,  the  plaintiff  cannot  enter  a  noil.  pros,  as  to 
the  other,  and  then  proceed  against  the  party  bound, 

(s)  5  Burr.  2614.  1  Saund.  153.  (n.  1.)  291.  b.  c.  (n.  4.)  6 
T.  R.  769.  1  Vent.  34. 

(/)  Clayt.  114.  1  East,  48.  2  Day,  272.  2  New  Rep.  454. 
11  Johns.  R.  101.  1  Esp.  Rep.  363. 

(M)  3  East,  62.      1  Keb.  284.    Carth.  361.   3  Brod.  &  Bing.  54. 

(r)  1  Keb.  284. 


OF  PLEAS  IN  ABATEMENT.  281 

alone(?(;).     To  allow  this,  would  be   to  enable  the  CHAP. 

plaintiff,  by  his  own  act,  not  only  to  defeat  a  good  v. 
defence  upon  the   merits  ;  but  also  virtually  to  sub- 


stitute one  action  for  another — or  rather,  to  trans-  &c"Jof"dee-r; 
form  an  action  against  A.  &  B.,  into  an  action  against  ^"contract : 
A.  alone. 


If  several  are  sued  for  a  TORT,  committed  i»tort- 
by  one  of  them  only  ;  the  joinder  of  the  others  is  no 
ground  of  abatement,  nor  can  advantage  be  taken  of 
it,  as  a  misjoinder,  in  any  way  (a;).  For  of  co-de- 
fendants, in  actions  ex  delicto,  some  may  be  convict- 
ed, and  others  acquitted ;  and  the  proper  plea  for 
those  not  actually  guilty,  is  the  general  issue.  But 
a  plea  in  abatement,  by  one  of  the  defendants,  that 
the  wrong  in  question  was  committed  by  the  others, 
without  his  concurrence,  is  ill  ;  because  it  is,  in  ef- 
fect, the  general  issue,  which  is  pleadable  only  to  the 
action. 

§  118.  If,  on  the  other  hand,  one  is  sued  alone, 
for  a  tort  committed  by  himself  and  others  jointly ; 
the  nonjoinder  of  the  others  is,  in  general,  no  ground 
of  exception,  either  in  abatement  or  otherwise  (?/). 
For  a  tort,  committed  by  several,  may  regularly  be 
treated  as  joint  or  several,  or  as  partly  joint,  and 
partly  several,  at  the  election  of  the  plaintiff.  And 
as  he  consequently  has,  by  the  general  rule,  the 

(w)  4  Taunt.  470.  3  Esp.  Rep.  76.  5  Ib.  47.  COM/.  5 
Johns.  R.  160.  1  Pick.  500. 

(A-)   1  Saund.  291.  d.  (n.  4.) 

(//)  Bac.  Abr.  Tresp.  G.  1.  &  1.  1.  8  Co.  159.  1  Saund.  291. 
d.  (n.  4.)  3  East,  62. 


282  OF  PLEAS  IN  ABATEMENT. 

CHAP,    right  by  law,  to  sue  any  one  of  them  only — or  all — 

v.        or  any  number  of  them  together — or  each  of  them, 

in  a  several  action  :  the  nonjoinder  of  any  of  the 

Nonjoinder,  r 

&C  of  de-    wrong-doers  is  no  defence,  in  any  form. 

fendants :  J 

In  tort. 

§  119.  But  there  is  an  exception  to  the  last 
rule,  where  one  is  sued  alone  in  tort,  upon  a  cause 
of  action,  arising  out  of,  or  concerning,  real  property 
held  jointly,  or  in  common,  by  himself  and  another. 
In  this  case,  the  nonjoinder  of  the  other  tenant  is 
pleadable  in  abatement,  although  the  action  sounds 
in  tort(z).  For  the  probable  ground  of  this  excep- 
tion to  the  general  rule,  see  ch.  4,  §  76. 

* 

^  120.  When  a  suit  is  defeated,  by  a  plea  in 
abatement,  for  the  nonjoinder  of  another  person, 
who  should  have  been  made  a  co-defendant ;  the 
latter  may,  in  a  subsequent  action  for  the  same 
cause,  and  in  which  he  is  made  such,  plead  in  abate- 
ment, that  still  another  ought  to  have  been  sued(a). 
And  in  case  of  several  successive  suits  for  the  same 
cause,  each  new  defendant,  disclosed  in  the  next  pre- 
ceding suit,  by  a  plea  in  abatement,  may  plead,  in 
the  same  manner,  that  another,  still,  should  have 
been  joined,  as  defendant(6).  For  the  new  de- 
fendant cannot  be  deprived  of  his  right  thus  to  plead, 
by  the  omission  of  the  defendant,  or  defendants,  in 
the  prior  suit,  to  disclose  the  names  of  all  those, 

(z)  5  T.  R.  651.   1  Saund.  291.  e.  (n.  4.)  2  Black.  Com.  182. 
Com.  Dig.  Abatement,  F.  6. 
(a)  3  East,  70-1. 
(6)  Ib. 


OF  PLEAS  IN  ABATEMENT.  283 

who  ought  to  have  joined  in  it.     And  the  same  rule    CHAP. 
holds,  throughout  any  series  of  actions  in  which  new        v. 
joint  contractors  are  successively  disclosed. 

^  121.  But  the  same  defendant,  who,  in  a  prior 
suit,  has  pleaded  the  nonjoinder  of  one  joint  con- 
tractor, cannot  plead,  when  afterwards  sued  on  the 
same  contract  as  co-defendant  with  the  latter,  that 
there  is  still  another  joint  contractor,  who  should 
have  been  made  defendant(V).  This  he  is  estopped 
to  do,  by  his  plea,  in  the  preceding  suit :  For  he 
ought,  by  his  plea  in  that  suit,  to  have  '  given  the 
plaintiff  a  better  writ?  by  naming  all  the  joint  con- 
tractors. 


VI.  The  Pendency  of  a  prior  suit,  for  the  same 
cause. 

&  122.  It  is,  in  general,  a  good  plea  in  abatement,  Pendency  of 

'    a  prior  suit. 

that  there  is  a  prior  action,  (similar,  or  concurrent), 
pending  between  the  same  parties,  for  the  same 
cause (d).  For  the  law,  which  '  abhors  a  multi- 
plicity of  suits,'  will  not  permit  a  defendant  to  be 
harassed,  by  two  or  more  actions  for  the  same 
thing,  where  a  complete  remedy  might  be  obtained 
by  one  of  them.  The  object  of  the  rule  is  to  pre- 
vent vexation. 

• 

(c)  Ib. 

(d)  Thel.  Dig.  270.     Com.  Dig.  Abatement,  H.  24.     Bac.  Abr. 
Abatement,  M.     5  Co.  61—2.     Doct.  PI.  10.  67. 


284  OF  PLEAS  IN  ABATEMENT. 

CHAP.  §J23.  To  give  effect  to  this  plea,  it  is  not 
v.  necessary  that  both  suits  be  of  the  same  kind :  It  is 
sufficient  for  this  purpose,  that  they  are  concur- 
rent(e).  Thus,  in  replevin,  it  is  a  good  plea  in 
abatement,  that  a  prior  action  of  trespass,  for  the 
same  taking,  is  depending.  And  when  trespass  and 
trover  are  concurrent,  the  pendency  of  one  when 
the  other  is  brought,  is  pleadable  in  abatement  of 
the  latter(/}.  For  the  vexation  is  the  same,  as  if 
both  suits  were  of  the  same  kind.  And  the  identity 
of  the  cause  of  action,  in  the  two  cases,  may  be 
shown  by  averment. 

^  124.  But  where  the  cause  of  action  is  not  the 
same  in  both  suits,  the  pendency  of  the  first  will  not 
abate  the  second(g).  Such  a  case  is  not  within  the 
reason,  or  even  the  terms,  of  the  above  general  rule. 
Hence,  in  debt  on  a  bond  secured  by  mortgage,  the 
pendency  of  a  prior  action  of  ejectment,  for  the  land 
mortgaged,  is  no  cause  of  abatement(/t). 

^  125.  It  is  immaterial  whether  the  first  suit  is 
pending,  or"  not,  at  the  time  of  the  defendant's 
pleading  in  abatement  of  the  second.  If  the  first 
was  pending,  when  the  second  was  commenced ;  the 
latter  may  be  abated,  as  being  vexatious  ab  initio(i). 

(e)  lid. 

(/)  Bac.  Abr.  Abatement,  M.  Hob.  184.  Hutt.  3.  Doct. 
PI.  10.  Com.  R.  595. 

(g-)  5  Co.  61-2.     Hob.  184.     Com.  Dig.  Abatement,  H.  24. 

(h)  Doug.  417.     2  Atk.  344.     Pow.  on  Mortg.  417. 

(t)  Doct.  PI.  10.  Bac.  Abr.  Abatement,  M.  3  Inst.  Cler.  118. 
Gilb.  H.  C.  P.  255-6.  5  Mass.  R.  177. 


OF  PLEAS   IN  ABATEMENT.  285 

And  on  principle,  it  seems,  that  this  plea  can  never    CHAP. 
prevail,    except   in    cases   where  the    latter   suit  is        v. 
vexatious.  

§  126.  Hence,  where  it  appears  that  the  first 
action  must  have  been  ineffectual,  the  courts  of  Con- 
necticut have  often  determined  that  its  pendency 
shall  not  abate  the  second  (A;)  :  Because  in  such  a 
case,  the  latter  is  not  vexatious. 

^  127.  The  plea  of  a  prior  suit  pending,  for  the 
same  cause,  is  good,  although  there  be  a  new  de- 
fendant added  in  the  second :  As  where  the  first 
action  is  against  A.  only,  and  the  second  against  A. 
&  B.(T).  And  by  the  opinion  of  three  judges, 
(Holt,  Ch.  J.  doubting),  it  was  held  that  the  second 
suit  must  abate,  as  to  both  defendants(14). 

And  when,  on  the  other  hand,  one  of  two  or 
more  defendants  in  the  first  action  is  omitted  in  the 
second — (as  if  the  first  action  is  against  A.  &.  B. 

(k)  1  Root,  355.  562. 

(/)  Garth.  96—7.  Comb.  144.  1  Show.  75.  Ham.  N.  Prius. 
(Am.  ed.)  96.  Hob.  137. 

(14)  Where  the  liability  of  the  defendant  is  several,  as  well  as 
joint,  (as  in  an  action  for  a  joint  tort),  qu.  whether  the  second 
action  ought,  on  principle,  to  abate  quoad  the  neiv  defendant. 
For  he  is  not,  in  fact,  subjected  to  vexation  by  the  second  suit'; 
and  the  action  is,  by  the  supposition,  of  such  a  nature,  as  might 
be  prosecuted  against  himself  alone.  Such,  however,  was  the 
action,  in  the  case  referred  to,  in  the  text.  Was  not  Ld.  HolCs 
doubt,  then,  well  founded  ? 

37 


286  OF  PLEAS  IN  ABATEMENT. 

CHAP.    a°d  the  second  against  A.  only) — it  seems  manifest 
v.       that  the  second  must  abate  :  The  case  being  plainly 
within  the  reason  of  the  general  rule. 

§  128.  On  a  writ  of  partition,  the  defendant 
may,  by  the  common  law,  plead  in  abatement  the 
pendency  of  a  prior  writ  of  the  same  kind,  brought 
by  himself  against  the  plaintiff1  in  the  second,  for  a 
partition  of  the  same  land(m)  :  Because  the  same 
end,  which  the  plaintiff  in  the  second  suit  seeks  to 
attain,  may  be  fully  attained  in  the  first. — But 
since  the  statute  8  &  9  W.  Ill,  c.  39,  there  can  be 
no  plea  in  abatement  in  any  suit  for  partition  of 
lands(ww). 

§  129.  By  the  English  law,  the  pendency  of  a 
prior  action,  in  an  inferior  court,  is  not  pleadable  in 
abatement  of  another,  brought  in  one  of  the  Supe- 
rior Courts  of  Westminster(w).  This  rule  seems 
to  have  originated  in  the  general  authority  of  the 
latter  courts  to  supersede  the  jurisdiction  of  the 
former,  upon  the  application  of  defendants  in  the 
inferior  courts(14«). 

(m)  Gilb.  H.  C.  P.  260.  Bac.  Abr.  Abatement,  M.  Dy.  92.  b. 
Coni.  1  Brownl.  158. 

(mm}  2  Lill.  Ab.  357.  3  Black.  Com.  302. 

(n)  5  Co.  62.  Bac.  Abr.  Abatement,  M.  2  Wils.  87.  Com. 
Dig.  Abatement,  H.  24. 

(14  o)  From  the  language  of  Ch.  J.  Eyre  (Fitzg.  313),  it 
might  perhaps  be  inferred,  that  the  reason  of  this  exception  to  the 
general  rule  is  the  presumed  want  of  jurisdiction  in  the  inferior 
court.  (See  also  1  Chitt.  PI.  443.  n.  r.)  But  upon  this  suppo- 


OF  PLEAS  IN  ABATEMENT.  287 

§  130.  It  is  no  cause  for  abating  an  indictment,    CHAP. 
that  a  prior  indictment  is  pending  against   the  defen-       v. 
dant,    for   the    same  offence.       Because   the  court,  - 
in  the  exercise  of  its  discretionary  control  over  pros- 
ecutions by  indictment,  may  quash  the  first(o).    The 
same  is  true  of  informations  for  crimes  filed  ex  qffi- 
cio,  by  a  prosecuting  ofificer(oo). 


But  this  rule  does  not  extend  to  the  case 
of  two  informations  qui  tarn,  &c.  for  the  same  of- 
fence. For  on  such  an  information,  the  situation  and 
rights  of  the  prosecutor  are  analogous  to  those  of  the 
plaintiff  in  a  civil  suit  ;  and  the  court  has,  therefore, 
no  such  discretionary  power  over  them,  as  it  exercises 
over  indictmentsQ/). 

^  132.    VII.    In  general,  any  irregularity,  defect  ^ 
or  informality,  in  the  terms,  form,   or  structure,  of 
the  writ,  or  in  the  mode  of  issuing  it,  is  a  ground  of 
abatement^). 

(o)  2  Hawk.  P.  C.  c.  34,  §  1.     Cro.  Car.  147.     Fost.  104,  & 
seq.     2  East,  226. 
(oo)  Doug.  240. 

(p)  2  Hawk.  P.  C.  c.  26,  §  63.     Doug.  240,  (n.  1.)  2d  ed. 
(«/)  Com.  Dig.  Abatement,  H.  1-6.     Lawes'  PI.  106. 

sition,  there  would  seem  to  be  no  propriety  in  limiting  the  excep- 
tion to  prior  suits  in  inferior  courts  ;  since  a  prior  suit,  pending 
even  in  a  superior  court,  not  having  jurisdiction  of  it,  would,  on 
principle,  afford  no  cause  for  abating  a  second  suit  for  the  same 
cause  in  any  other  court.  Upon  the  same  supposition,  an  allega-. 
tion  of  jurisdiction  in  the  inferior  court  would  seem  to  make  the 
plea  good. 


288  OF  PLEAS  IN  ABATEMENT. 

CHAP.        §  133.  The  defects  or  mistakes,  which  fall  within 
v.       this  general  description,  are  quite  multifarious,  and 

hardly  admit  of  an  explanation  in  detail.      Among 

those  usually  enumerated,  are  any  uncertainty  or  re- 
pugnancy— want  of  date,  or  an  impossible  date — 
want  of  venue,  or,  in  local  actions,  a  wrong  venue — 
a  defective  return,  &c.  &c.(r).  The  return  is  '  defec- 
tive,' when  the  time,  between  the  date  of  the  writ 
and  the  return-day,  is  too  short  to  afford  the  defend- 
ant such  length  of  notice,  in  regard  to  time,  as  the 
law  requires(s). 

§  134.  If  the  writ  is  made  returnable  to  any  other 
than  the  Jirst  term  of  the  court,  after  it  issues,  when 
there  is  sufficient  intervening  time  for  its  return  to 
that  term  ;  it  may  for  this  cause  be  abated ;  but  a 
plea  in  abatement,  in  such  a  case,  is  unnecessary. 
For  the  writ  is  void,  and  therefore  liable  to  be  set 
aside,  on  motion(t)(\o}. 

(r)  Com.  Dig.  Abatement,  H.  1-17.     Lawes'  PI.  106. 

(«)  Com.  Dig.  Abatement,  H.  15.  2  Keb.  461.  2Wils.  117- 
6  Pick.  370. 

(/)  3  Wils.  341.  2  Sulk.  700.  1  Root,  315.  316.  5  Mass. 
R.  100. 

(15)  It  is  necessary  to  the  protection  of  the  defendant,  that  the 
writ  should  be  considered  as  void,  and  not  as  merely  abateable. 
If  the  rule  were  otherwise,  no  advantage  could  be  taken  of  the  ir- 
regularity, until  the  arrival  of  the  term,  to  which  it  is  made  return- 
able— which  might  be  at  any  future  term,  however  remote  ;  and 
the  defendant  might  consequently  be  held  to  bail,  or  imprisoned, 
during  the  whole  intermediate  period.  But  the  writ  being  void,  all 
acts  done  in  obedience  to  it,  are  so  :  And  the  defendant,  if  ar- 
rested under  it,  is  entitled  to  an  immediate  discharge. 


OF  PLEAS  IN  ABATEMENT.  289 

§  135.  If  the  sheriff's  return  of  service,  as  indors-    CHAP. 
ed  by  him  upon  the  writ,  is  defective  upon  the  face       v. 

of  it — (as  if  it  appears,  from  his  indorsement,  that  

the  defendant  has  not  had  seasonable  notice  of  the 
suit)  ;  this  is  a  ground  of  abatement,  or  for  setting 
the  writ  aside,  on  motion(u).  But  if  sufficient  upon 
the  face  of  it;  the  defendant  cannot  falsify  it,  on  a 
plea  in  abatement ;  and  his  only  remedy  is  an  ac- 
tion against  the  sheriff,  for  a  false  return(v*).  For 
it  is  a  general  rule  of  the  common  law,  that  such 
official  acts  shall  not  be  falsified,  except  by  a  pro- 
ceeding, to  which  the  officer  is  a  party,  and  which 
is  commenced  for  the  direct  and  express  purpose  of 
falsifying  it. 

^  136.  In  the  state  of  Connecticut,  however,  if 
the  service  is  actually  defective,  the  defendant  has 
always  been  allowed  to  prove  it  so,  under  a  plea  in 
abatement,  even  in  contradiction  of  the  officer's  in- 
dorsement. 

§  137.  VIII.  That  the  action  is  misconceived,  is  Action  mis- 
pleadable  in  abatement :  As  if  assumpsit  is  brought, 
when  account  is  the  only  proper  remedy  ;  or  trespass, 
when  case  is  the  proper  action(i<;).  But  a  plea  in 
abatement,  for  this  cause,  is  unnecessary  and  unusual. 
For  if  the  mistake  appears  upon  the  face  of  the 

(«)  Com.  Dig.  Abatement,  H.  15.     2  Wils.  117. 

(r)  2  Stra.  813.  T.  Jon.  39.  1  Black.  R.  393.  Com.  Dig. 
Retorn,  G.  4  Mass.  R.  478. 

(i«)  Com.  Dig.  Abatement,  G.  5.  1  Show.  71.  Hob.  199. 
Lawes'  PI.  106.  Tkld,  579. 


290  OF  PLEAS  IN  ABATEMENT. 

CHAP,     declaration,  it  is  fatal  on  demurrer  ;  and  if  not,  ad- 
v.        vantage  may  be  taken  of  it  under  the  general  issue. 


&  138.     IX.  That  the  right  of  action  had  not  ac- 

ed  too  soon.  3  •* 

cruea,  at  the  commencement  of  the  suit,  may  be 
pleaded  in  abatement^)  :  As,  when  an  action  on 
contract  is  commenced,  before  the  time,  appointed 
for  performance.  This  plea  also  is  seldom  used, 
and  for  the  same  reason,  as  is  mentioned  under  the 
last  head. 

The  foregoing  enumeration  of  pleas  in  abatement 
comprehends  all  the  principal  causes  or  grounds  of 
abatement,  known  to  the  common  law(15  a). 

(x}  2  Lev.  197.     Benl.  57.  Cro.  Eliz.  325.     Hob.  199.  Com. 
Dig.  Action,  E.  1. 

(15  a)  What  are  here  called  pleas  in  '  abatement',  without 
further  discrimination,  comprehend  all  those  pleas,  which,  under 
the  more  minute  and  complex  classification  of  dilatory  pleas,  pre- 
sented in  the  first  section  of  this  chapter,  follow  pleas  to  '  the  per- 
son of  the  plaintiff".'  And  the  nine  foregoing  kinds,  or  classes,  of 
pleas  in  abatement,  enumerated  in  the  present  chapter,  (from  §  69 
to  §  138,  inclusive),  are  under  that  more  minute  classification,  de- 
nominated as  follows  :  —  1.  The  plea  of  coverture  of  the  defendant, 
and  that  of  the  death  of  a  party,  are  pleas  '  to  the  person'  —  i.  e. 
the  person  of  the  defendant,  in  the  first  case,  and  of  either  party, 
in  the  second.  —  2.  The  plea  of  variance  between  the  count  and 
the  writ,  or  between  the  writ  and  the  instrument,  &c.  declared  on, 
Ante,  §  64,  is  a  piea  '  to  the  count'  ;  (as  all  writs  were  formerly  recited  at  full 
length  in  the  count}.  —  3.  The  pleas  of  misnomer,  want  of  addi- 
tion, &c.  —  of  nonjoinder  or  misjoinder  of  parties,  and  pleas  found- 
ed on  any  repugnancy,  defect  or  informality,  upon  the  face  of  the 
writ,  are  pleas  'to  the  form  of  the  writ'.  —  4.  The  plea  of  a  prior 


OF  PLEAS  IN  ABATEMENT.  291 

§  139.  When  a  plea  in  abatement  is  true,  in  point    CHAP. 
of  fact,  and  sufficient  in  law,  (in  which  case  the  writ        v. 

must  abate),  the  plaintiff  may — in  order  to  prevent  

unnecessary  delay  and  expense — enter  a  cassetur 
breve,  or  cassetur  billa ;  i.  e.  may  pray  that  his  writ 
or  bill  may  be  quashed,  to  the  intent,  that  he  may  sue 
out  a  better  writ,  or  exhibit  a  better  bill,  for  the  same 
cause(t/).  And  judgment  will,  of  course,  be  entered 
according  to  his  prayer.  Whenever  the  defect  is  such 
as  cannot  be  amended,  this  is  the  more  eligible  course 
for  the  plaintiff. 

^  140.  There  is  also  another  mode  in  which  the  Nl°Ueprose" 
plaintiff  may,  in  general,  after  a  plea  in  abatement, 
and  in  most  other  stages  of  the  suit,  put  an  end  to 
his  own  action,  in  whole,  or  in  part ;  viz.  by  enter- 
ing a  nolle  prosequi(z) — which  is  an  entry  upon  the 
record,  that  he  will  not  further  prosecute  the  suit 
against  the  defendant,  in  respect  either  to  the  whole, 
or  some  part,  of  his  alleged  cause  of  action. 

(y)  Lawes'  PI.  166.  7  T.  R.  698.  3  Anst.  935.  Tidd,  633 
1  Chitt.  PI.  454.  2  Ib.  590. 

(z)  Lawes'  PI.  166.  Tidd,  617.  620-1.  1  Bos.  &  P.  157. 
Vid.  1  Peters,  74,  &  seq. 

suit  pending  for  the  same  cause — that  the  action  is  misconceived 
— or  that  the  suit  was  commenced  before  the  right  of  action  had 
accrued,  is  a  plea  '  to  the  action  of  the  writ.' 


292  OF  PLEAS  1N  ABATEMENT. 

CHAP. 
V. 

-  Of  the  mode  of  pleading  in  abatement  and  the  effect 

of  the  plea(\Q). 

§  141.  If  matter  of  mere  abatement  is  pleaded  in 
bar  ;  or  if  matter,  which  goes  only  in  bar,  is  pleaded 
in  abatement  ;  the  plea,  in  either  case,  is  ill(a).  For 
otherwise,  all  distinction  betweent  hese  different  clas- 
ses of  pleas  would  be  confounded.  In  the  former 
case  too,  judgment  in  chief  must  be  given  for  the 
plaintiff  (6)  ;  since  the  plea,  which  is  necessarily  ill, 
is  to  the  action.  There  are,  however,  as  has  before 
been  shown,  (ante,  ^  37.  43.),  certain  defences, 
which  are  good,  either  in  abatement  or  in  bar  ;  and 
to  these  the  above  rule  is,  of  course,  inapplicable. 


how  tobe         §  14Q.    A  plea  in  abatement,  for  matter  apparent 
gin,  and      upon  the  face  of  the  writ,   should,  in  general,  both 

conclude.          * 

begin  and  conclude,  by  praying  'judgment  of  the 
writ,'  (or  'of  the  writ  and  declaration'),  and  that 
the  same  may  be  quashed  :  But  where  the  cause  of 
abatement  is  extrinsic,  the  plea,  it  is  said,  should  not 

(a)  Com.  Dig.  Abatement,  I.  12.  14.     4  T.  R.  227.     2  Saund. 
209.  c.  d.  (n.  1.)     1  Mod.  239. 
(6)  2  Ld.  Ray.  1020.     1  East,  634. 

(16)  The  great  degree  of  certainty  and  accuracy,  required  in 
dilatory  pleas  of  all  kinds,  has  been  before  explained,  (ante,  §§  66. 
67,  and  ch.  3,  §§  57.  58.)  The  rules  on  this  subject  need  not, 
therefore,  be  here  repeated. 


OF  PLEAS  IN  ABATEMENT.  293 

begin,  but  only  conclude,  with  this  prayer(c).     The    CHAP. 
precedents,  however,  do  -not  all  appear  to  conform        v. 
to  this  distinction^).     If  the  action  is  by  bill,  the  - 

plea  should,  in   like  manner,  pray  '  judgment  of  the  The  Piea 

1  J       J  how  to  be- 

bill'(>).  gin,  and 

conclude. 

§  143.  When  the  plea  goes  to  the  person  of  the 
defendant,  (as  if  it  be,  that  she  is  a  feme  covert),  the 
form  of  praying  judgment  is,  '  whether  the  defend- 
ant ought  to  answer' — or  '  ought  to  be  compelled 
to  answer'(y)  :  It  being  rather  the  personal  privi- 
lege of  the  defendant,  than  any  fault  in  the  writ 
itself,  that  constitutes  the  ground  of  exception. 

§  144.  Any  mistake,  in  the  form  of  beginning 
or  concluding  a  plea  in  abatement,  is  fatal  to  the 
plea(g').  Great  accuracy  is  therefore  required,  in 
these  two,  as  well  as  in  all  other  particulars.  Upon 
these  two,  indeed,  depends  the  character  of  the  plea, 
as  distinguished  from  a  plea  to  the  action. 

§  145.  The  character  of  a  plea  depends,  regu- 
larly, upon  the  form  of  its  commencement  and  conclu- 
sion :  or  (which  is  the  same  thing),  upon  the  nature 
of  the  judgment  which  it  prays,  in  its  commence- 

(c)  Lawes'  PI.  108 — 9.  Com.  Dig.  Abatement,  I.  12.  2  Saund. 
209.  a.  d.  (n.)  2  Chitt.  PI.  415.  Tidd,  577.  584.  3  Black. 
Com.  303. 

(d)  1  Chitt.  PI.  451.     2  Ib.  413-420.  Bac.  Abr.  Abatement,?. 

(e)  2  Saund.  209.  d.  Holt,  3.    5  Mod.  144.     Tidd,  577.     Com. 
Dig.  Abatement,  I.  12. 

(/)  Lawes'  PI.  109.     Tidd,  584.     2  Saund.  209.  d. 
(g)   2  Saund.  209.  c.  d.     1  Chitt.  PI.  445.     3  T.  R.  185.     1 
B.  &  A.  173. 

38 


OF  PLEAS  IN  ABATEMENT. 

CHAP,    nient ana*    conclusion.     So    that   if  these   are  alike 
v.        (both  in  abatement,  or  both  in  bar)  ;  they  are  deci- 

sive  of  the  character  of  the  plea,  whatever  may  be 

h?wtoebe-   its  matter  (h). 

gin,  and 
conclude. 

^  146.  If  therefore,  the  defendant  pleads  mat- 
ter, which  goes  only  in  bar  (as  a  release),  but  be- 
gins and  concludes  in  abatement,  (as  by  praying 
judgment  of  the  writ} ;  the  plea  is  in  abatement(i). 
And  the  same  commencement  and  conclusion,  which 
the  plea  requires,  are  to  be  followed  in  the  replica- 
tion, rejoinder,  &c.  until  an  issue  is  tendered  ;  and 
those,  tendering  an  issue,  require  the  same  com- 
mencement. 

^  147.  And  on  the  other  hand,  if  the  matter 
pleaded  goes  only  in  abatement,  (as  misnomer,  or  any 
informality  in  the  writ},  but  begins  and  concludes  in 
bar ;  the  plea  is  in  bar(j)  (17). 

^  148.  But  when  the  beginning  and  conclusion 
of  the  plea  differ,  (the  former  being  in  abatement, 
and  the  latter  in  bar,  or  e  converse),  there  is  some 
confusion  in  the  books — not  indeed  as  to  the  legal 
sufficiency  of  the  plea,  which  is  ill  of  course,  by 

(/i)  Ld.  Ray.  593.  1019.     Bac.   Abr.   Abatement,   P.     Latch, 
178.     2  Saund.  209.C.  d.  (n.  1.)     Lawes' PI.  107.     Tidd,  583-4. 
(t)  lid.     6  Taunt.  587. 
(j)  1  Sid.  189.  190. 

(17)  By  a  plea  '  in  abatement,'  in  these  distinctions,  regarding 
the  different  characters  of  pleas,  is  meant  a  dilatory  plea  of  any 
kind. 


OF  PLEAS  IN  ABATEMENT.  295 


reason  of  the  discrepancy  —  but  as  to  the  effect  of   CHAP- 
the  discrepancy,  upon  the  character  of  the  plea,  and          ' 
consequently  upon  the  mode  of  answering  it,  and  The  pica 
the  kind  of  judgment  to  be  rendered  upon  it. 


conclude. 


According  to  the  weight  of  authority,  however, 
the  following  appear  to  be  the  correct  distinc- 
tions : — 

• 

^  149.  When  the  beginning  and  conclusion  thus 
differ,  the  subject-matter  of  the  plea  would  seem  to 
be  the  most  simple  and  most  obvious  criterion  of  its 
character.  And  such  is  the  established  rule,  when 
the  application  of  this  criterion  would  favor  the 
plaintiff;  though  it  is  otherwise,  when  the  same 
criterion  would  operate  in  favor  of  the  defendant : 
A  distinction,  derived  from  the  policy  of  discouraging 
dilatory  pleas, 

§  150.  Thus  if  matter,  which  goes  only  in  bar, 
begins  in  abatement  and  concludes  in  bar — or  e  con- 
verso  ;  it  is  a  plea  in  bar(k),  by  reason  of  its  subject- 
matter — and  being  ill,  by  reason  of  the  discrepancy 
between  its  commencement  and  conclusion ;  the 
plaintiff,  by  demurring  as  in  bar,  (i.  e.  by  concluding 
his  demurrer,  with  a  prayer  of  judgment  in  chief  his 
debt,  or  damages),  is  entitled  to  final  judgment  upon  it. 

§  151.  So  also,  if  matter,  which  goes  only  in 
abatement,  begins  in  bar,  and  concludes  in  abate- 

(/,-)  Ld.  Ray.  593.^1018.    2  Sauud.  209.  c.  d.  (11.  1.)  6  Mod.  103. 


OF  PLEAS  IN  ABATEMENT 


296 

CHAP,    merit,  or  e  converse ;  the  plaintiff  may  demur,  as  in 
v.       bar(l).     And   if  he   thus  demurs,  he  entitles  himself 
to  final  judgment(18).     But  if  issue   is  joined,  on 


how  tp0ebe-  such  a  plea,  and  found  for  the  defendant ;  the  judg- 
ment  will  be,  as  on  a  plea  in  abatement,  viz.  that  the 
writ  be  quashed  ;  though  if  the  same  issue  were 
found  for  the  plaintiff,  he  would  be  entitled  to  judg- 
ment in  chief  (m). 

^  152.  If  a  plea  of  matter,  which  goes  indiffer- 
ently either  in  bar  or  in  abatement,  differs  in  its 
commencement  and  conclusion  ;  the  plaintiff  may, 
with  equal  propriety,  demur  to  it,  either  as  in  bar, 
or  in  abatement(V).  For  the  beginning  and  con- 
clusion neutralize  each  other,  as  regards  the  charac- 
ter of  the  plea ;  and  its  subject-matter,  (as  it  may 
operate  either  way),  furnishes  no  criterion.  The 
judgment  will  therefore  follow  the  nature  of  the 
prayer,  with  wrhich  the  demurrer  concludes.  It  is 
obvious,  then,  that  the  course,  most  advantageous  to 
the  plaintiff,  is  to  demur  to  the  plea,  as  in  bar;  as 
by  thus  demurring,  he  will  entitle  himself  to  judg- 
ment quod  recuperet. 

(/)  1  Chitt.  PI.  446.  456-7.  2  Saund.  209.  d.  (n.  1.)  1 
East,  634.  10  Johns.  R.  49. 

(m)  1  Cbitt.  PI.  446.  1  East,  634.  2  Saund.  209.  d.  n.  1.) 
2  Ld.  Ray.  1018. 

(n)   Bac.  Abr.  Abatement,  P.     1  Vent.  136.      3  Mod.  281. 

(18)  The  uile,  allowing  the  plaintiff  to  demur  in  this  manner, 
originated  in  the  same  anxiety  of  courts  of  justice  to  discourage 
dilatory  pleas.  Were  it  not  for  this  reason,  the  mailer  of  the  plea 
would  determine  its  character,  as  under  the  last  preceding  rule. 


OF  PLEAS  IN  ABATEMENT.  297 

§  153.  On  a  judgment,  rendered  upon  any  dilato-    CHAP. 
ry  plea,   error  may  be  assigned,   as  well  as  upon  a       v. 

final  judgment.     But   matter  of  mere  abatement,  if 

not  pleaded  in  abatement,  cannot  be  assigned  for  signabufon 
error(o).     For  if  not  thus  pleaded,  it  is  waved — as  mem"  given 
it  would  be  unreasonable  that  a  suit  should  be  de-  ™eas.a°ry 
feated,  in  its   latter  stages,  by  an  exception,  which 
might  have  been  taken  in  limine.     Excovit  having  an 
impossible  date. 

^  154.  For  a  similar  reason,  it  is  an  established 
rule,  that  to  a  scire  facias,  or  debt  on  judgment,  the 
defendant  is  not  allowed  to  plead  in  abatement, 
(nor  indeed  in  bar),  any  thing,  which  he  might  have 
pleaded  in  the  original  actionQ?). 

&  155.    A   defendant   cannot  'demur    in    abate-  Defendant 

.  ,     *.  rp,,    .  f.  i  •  .  may not  de' 

ment  (o).      I  his  rule  appears,  from   the  application  mur  in 

r    •       •         i        i         i  ,.rr  .  abatement. 

or  it  in  the  books,  to  have  two  different  meanings, 
or  to  be  applied  in  two  different  senses:  1.  That 
the  defendant  cannot  demur,  for  defects  or  mistakes 
in  the  writ(r)  (19)  :  2.  That  he  cannot  plead  in 
abatement,  for  the  insufficiency  of  the  declaration(s). 

(o)  10  Mod.  166.  6  T.  R.  766.  Carth.  124.  Com.  Dig. 
Abatement,  I.  36.  2  H.  Black.  267.  299.  Bac.  Abr.  Error,  K.  5. 

(p)  Bac.  Abr.  Abatement,  O.  1  Salk.  2.  310.  1  Atk.  292.  2 
Stra.  732.  1  Wils.  258.  1  Saund.  219.  c.  (n.  8.)  Co.  Litt.  303. 

(g)  Bac.  Abr.  Abatement,  P.  1  Salk.  220.  Willes,  410.  479. 
6  Mod.  195.  198.  Andr.  147. 

(r)  Plowd.  73.  n.     6  Mod.  198. 

(«)  Plowd.  73.  n.  Willes,410.  479.  Lawes'  PI.  172.  Gilb. 
H.  C.  P.  259. 

(19)  It  was  formerly  held  otherwise.     (Plowd.  73.     Dy.  341.) 


298  OF  PLEAS  IN  ABATEMENT. 

CHAP.    The  former  he  cannot  do,  because  a  demurrer  never 
v.       reaches  the  writ;  nor  the  latter,  because  no  advan- 

tage  can  be  taken  of  insufficiency  in  the  pleadings, 

by  a  plea  in  abatement  (ante,  ch.  2,  §  34).  And  on 
the  plaintiff's  joining  in  the  demurrer,  in  the  one 
case,  or  demurring  to  the  plea,  in  the  other,  final 
judgment  will  be  given  in  his  favor(^)  (20). 

^anera0f  §  156.  Although,  as  we  have  seen,  the  prayer  of 
indent'  a  wron§  judgment,  in  the  conclusion  of  a  plea, 
makes  the  plea  faulty  ;  yet  a  mere  prayer  of  judg- 
ment, not  specifying  any  particular  kind  of  judgment, 
is  sufficient (u).  For  it  is  the  duty  of  the  court  to 
render  such  a  judgment  as  the  legal  effect  of  the 
pleading  requires. 

maybe"1  <^  157.  A  writ  may  be  abated  as  to  part  of  what 
paS  oni™  the  plaintiff  demands,  and  stand  good  for  the  resi- 
due^). Thus,  in  debt  on  two  bonds,  or  assumpsit 
on  two  promises,  the  defendant  may  plead,  as  to  one 
of  them,  the  nonjoinder  of  a  co-obligor,  or  co- 
promissor,  and  thus  abate  the  writ,  quoad  that  one 
bond  or  promise  only.  And  a  judgment,  thus  abat- 

(0  Plowd.  73.  n.     6  Mod.  198.     Willes,  411. 

(«)  2  Lev.  19.  1  Saund.  97.  Willes,  4 10.  411.  4  East,  502. 
509. 

(r)  Lawes'  PI.  106-7.  2  Saund.  210.  a.  (n.  1.)  2  Bos.  &  P. 
420.  Com.  Dig.  Abatement,  N.  Bac.  Abr.  Abatement,  L. 


(20)  But  if  a  prisoner,  indicted  of  a  capital  offence,  demurs  in 
abatement ;  the  judgment  is  only  a  respondeat  ouster,  (2  Hawk. 
P.  C.  c.  31,  §  6) :  A  rule  founded  on  the  benignity  of  the  law, 
in  favorem  vitce. 


OF  PLEAS  IN  ABATEMENT.  299 

ing  the  writ  in  part,  may  be  given  on  a  plea,  praying    CHAP. 
that  the  whole  may  be  abated  (to)  :     It  being  the  du-        v. 
ty  of  the  court  to  give  the   plea  its  proper  effect,  if 
the  judgment  prayed  is  of  the  right  kind. 


merits. 


§  158.    As  a    plea   in  abatement  does  not  go  to  J^ 
the   merits  of  the  cause  ;  a  judgment  upon  it  does  ™fce 
not,  in    general,  conclude    either    party,  quoad  the 
cause  of  action,  and  is  therefore  no  bar  to  a  subse- 
quent action  for  the  same  cause(:r)  :     The  general 
principle,  upon  which  a  prior  judgment  bars  a  sub- 
sequent action,  being,  that  the  merits  of  the  con- 
troversy have  been  already  decided   in  the   former 
suit. 

But  the  above  rule  does  not  hold,  when  the  judg- 
ment upon  a  plea  in  abatement  goes  in  chief  as,  in 
some  cases,  it  does(?/).  For  such  a  judgment  on  any 
plea  is,  in  its  nature,  conclusive  as  to  the  right  of  action. 

^  159.  As  to  the  judgment,  to  be  rendered  on 
pleas  in  abatement,  the  distinctions  are  the  follow-  ™$ 

ilicr  »  ment  re- 

& 


quire. 


1.  If  the  plea  is  determined  in  favor  of  the  de- 
fendant, upon  an  issue  either  in  law  or  fact;  the 
judgment  is,  that  the  writ,  (or,  as  the  case  may 

(w)  lid. 

(x)  Com.  Dig.  Action,  L.  4.      Bac.  Abr.  Pleas,  &c.  I.  13.     4 
Co.  43.  a.     6  Ib.  7.  8.     8  Ib.  37.  b.  98.     2  Vent.  170. 
(.</)  lid. 


300  OF  PLEAS  IN  ABATEMENT. 

CHAP,  be,  the  bill),  be  quashed(z).  And  this  judgment, 
v.  though  it  does  not  decide  the  right  of  action,  puts 
an  end  to  the  suit ;  unless  the  mistake,  on  which  the 
plea  is  founded,  may  be,  and  is,  corrected  by  amend- 
ment— in  which  case,  the  amended  writ,  (or  bill), 
becomes  a  new  one,  and  the  suit  may  then  pro- 
ceed. 

2.  If  the  plaintiff  prevails,  on  a  demurrer  to  the 
plea  ;  the  judgment  is  interlocutory,  viz.  arespondeat 
ouster — that  the  defendant  answer  over(«)  ;  under 
which  judgment,  he  may  plead  any  plea,  subsequent 
(in  the  order  of  pleading)   to  that,  which  has  been 
overruled.     (Post.  ch.  9,  §  41.) 

3.  If  an  issue  in  fact  is  joined  on  a  plea  in  abate- 
ment, and  found  for  the  plaintiff';  final  judgment  is 
awarded  in  his  favor(6)  :     A  rule,  which  extends  to 
all  dilatory  pleas(21).     The  object  of  the  rule  ap- 
pears to  be,  to  discourage  false  dilatory  pleas. 

(z)  Bac.  Abr.  Abatement,  P.     Yelv.  112. 

(a)  2  Saund.  211.  (n.  3.)  Yelv.  112.  Bac.  Abr.  Abatement, 
P.  3  Black.  Com.  308.  1  Vent.  22.  137. 

(6)  Com.  Dig.  Abatement,  I.  15.  1  East,  544.  2  Wils.  368. 
1  Lev.  163.  1  Vent.  22.  Yelv.  112.  T.  Ray.  119.  1  Ld.  Ray. 
594.  2  Saund.  211.  (n.  3.) 

(21)  This  rule  does  not  extend  to  the  case  of  indictments  for 
capital  offences.  In  such  cases,  if  an  issue  in  fact,  joined  on  a 
plea  in  abatement,  is  found  against  the  prisoner ;  the  judgment, 
(in  favorem  vttfee) ,  is  a  respondeat  ouster :  So  that  he  is  still  per- 
mitted to  plead  to  the  merits,  (2  Hawk.  P.  C.  c.  23,  §  128.  8 
East,  107.) 


OF  PLEAS  IN  ABATEMENT.  3QJ 

§  160.  In  the  state  of  Connecticut,  the  Su-  CHAP. 
prcme  Court  of  Errors,  in  the  year  1818,  recognized  v. 
the  following  distinction,  as  established  by  the  an- 
cient usage  of  the  state  :  viz.  If  an  issue  in  fact, 
joined  on  a  plea  in  abatement,  is  tried  by  the  jury, 
and  found  for  the  plaintiff;  final  judgment  shall  be 
given  for  him  :  But  if  the  issue  is  tried  by  the  court, 
(as,  by  the  statute-law  of  the  state,  it  may  be,  with 
the  mutual  consent  of  the  parties) ;  the  judgment 
shall  be  a  respondeat  ouster :  A  distinction,  for  which 
it  seems  difficult  to  assign  any  satisfactory  reason, 


39 


CHAPTER  VI. 


OF    PLEAS    TO    THE    ACTION. 

PART  I. — Of  the  General  Issue,  and  Special  Issues; 
including  also  Immaterial  and  Informal  Issues. 

CHAP.        SECTION  1.  An  issue,  in   pleading,  is   defined   to 

VI-       be  a  single,  certain,  and  material  point,  issuing  out 

PART  i.  of   tne    allegations    of   the    parties,    and    consisting, 

or  issues  in  regularly,  of  an  affirmative  and  negative(c)  (1).     The 

general.       word  '  issue,'  (exitus},  in  the  sense  in  which  it  is 

applied   to  pleading,   signifies    end,  termination,  or 

conclusion(d)  ;  and  is  thus  applied,  because  an  issue 

brings  the  pleadings  to  a  close. 

§  2.  The  above  definition  comprehends,  as  well 
issues  in  law,  as  in  fact.  As  to  the  former,  however, 

(c)  Co.    Litt.   126.  a.       Com.    Dig.  Pleader,   R.     Bac.   Abr. 
Pleas,  &c.  G.  1.     5  Peters,  149. 

(d)  3  Black.  Com.  314.     Finch's  Law,  396. 

(1)  This  definition  describes  a  good  issue.  But  when  a  direct 
affirmative  and  negative  are  predicated  of  an  immaterial  fact,  they 
form  what  is  called,  in  law,  an  issue,  though  a  bad  one,  as  being 
immaterial.  An  issue  in  law,  however,  can  never  be  immaterial : 
Since  it  reaches  back  through  all  the  pleadings,  and  puts  their 
sufficiency,  (in  point  of  substance,  at  least),  in  issue.  Vid.  De- 
murrer, ch.  9. 

\  ' 


OF  THE  GENERAL  ISSUE,  &c.  303 

nothing  further  need  be  observed  at  present,  than  that    CHAP. 
when  an  issue  in  law  is  said  to  consist  of  a  single      vi. 
point,  the  proposition  does  not  mean  that  such  an  is-  PART  i. 
sue  involves,  necessarily,  only  a  single  rule  or  princi-  ~ 
pie  of  law  —  or  that  it  brings  into  question  the  legal 
sufficiency  of  a  single  fact  only  :     The  meaning  of 
it  is  merely,  that  an  issue  in  law  reduces  the  whole 
controversy  to  the  single  question,  whether  the  facts, 
confessed  by  the  issue,  are  sufficient  in  law  to  main- 
tain the  action,  or  the  defence,  of  the  party  who  al- 
leged them  —  instead  of  leaving  the  controversy,  (as 
is  done  in  most  courts,  under  any  other  system  of  ju- 
risprudence than  that  of  the  common  law),  open  to  a 
discussion  at  large,  of  all  the  various  matters  of  both 
fact  and  law,  which  may,  on  each  side,  be  brought  to 
bear  upon  the  cause.     The  singleness  of  issues  in 
fact,  (as  will  appear  hereafter),  admits  of  a  similar 
explanation. 


&  3.  According  to  the  strict  original  rule  of  the  Mustcon- 

r  .  s'st  °f  an 

common  law,  every  issue  in  fact,  (with   the  excep-  affirmative 

r      and  nega- 

tion of  one  or  two  anomalies),  must  consist  of  a  tive- 
direct  affirmative  allegation,  on  one  side,  and  a  direct 
negative,  on  the  other(e).  For  of  two  affirmatives, 
or  two  negatives,  though  inconsistent  with  each 
other,  the  latter  denies  the  former  only  argumenta- 
tively  ;  and  argumentative  pleading,  (as  has  been 
shown  before,  ch.  3,  §  28),  is  not  allowable.  Thus, 
if  a  defendant  pleads  that  his  co-defendant  is  dead  ; 
a  replication  that  he  is  '  alive,7  does  not  form  a  pro- 

(e)  Co.  Litt.    126.  a.     2  Black.   Rep.    1312.     8  T.  R.   278. 
Bac.  Abr.  Pleas,  &c.  G.  1.     5  Peters,  149. 


304  OF  THE  GENERAL  ISSUE,  &c. 

per  issue — for  the  reason  just  assigned^/).  The  re- 
plication should  be,  that  the  co-defendant  '  is  not 
dead ;'  or,  '  that  he  is  alive,  without  this,  that  he  is 
issue.  dead' — a  form  of  negation,  to  be  explained  hereafter, 
under  the  head  of  Traverse. 

§  4.  In  one  or  two  modern  cases,  however,  the 
above  rule  has  been  somewhat  relaxed.  Thus, 
where  the  defendant  pleaded  that  he  was  born  in 
France,  a  replication  that  he  was  born  in  England, 
was  held  to  form  a  good  issue(g-)  :  And  it  is  said,  in 
the  report  last  cited,  to  be  sufficient,  '  if  the  second 
affirmative  is  so  contrary  to  the  first,  that  the  first 
cannot,  in  any  degree,  be  true  :'  Any  relaxation  of 
the  original  rule  tends,  however,  in  some  degree,  to 
looseness  and  uncertainty  in  the  formation  of  issues  ; 
and  breaks  in  upon  that  simplicity  and  uniformity  in 
their  structure,  which  it  is  Important  to  preserve. 
And  it  may  be  added,  that  no  relaxation  of  the  rule 
appears  to  be  demanded,  either  by  necessity  or  con- 
venience ;  since  a  strict  conformity  to  it  is,  of  all 
modes  of  producing  a  regular  and  precise  issue,  the 
most  natural,  simple,  and  easy. 

^  5.  One  original  exception  to  the  above  general 
rule,  as  to  the  formation  of  issues,  occurs  in  the  in- 
stance of  a  writ  of  right.  The  general  issue  to  the 
count  upon  that  writ,  is,  and  ever  has  been,  formed 
by  two  affirmatives  :  The  averment  on  one  side  be- 
ing, that  the  demandant  has  greater  right  than  the 


(/)  Sav.  86. 
'jr    1  Wils.  6. 


1  Vent.  213. 

2  Stra.  1177. 


OF  THE  GENERAL  ISSUE,  &c.  305 

tenant ;    and   on    the    other,     that    the    tenant    has    CHAP. 
greater    right  than  the  demandant — or,  (more  pre-       vi. 
cisely),  the  demandant  *  demands'  the  tenements  as  PART  i. 

his  right  and  inheritance  ;  and  the  tenant,  by  way  ' 

;  77       Issue- 

of  denial,  '  prays  recognition  to  be  made,  whether 

he  himself,  or  the  demandant,  has  greater  right,' 
&c.(/i)  But  by  reason  of  the  irregular  and  imper- 
fect form  of  this  plea,  it  is  technically  called,  '  the 
miseS  as  distinguished  from  general  '  issues,'  strict- 
ly so  called  (i). 

§  6.  The  other  anomalous  issue,  before  referred 
to,  occurs  in  the  general  plea  of  denial,  to  a  count 
in  dower ;  which,  to  the  extent  of  the  interest  de- 
manded, is  strictly  analogous  to  a  count  upon  a  writ 
of  right(k).  The  count  in  dower  merely  '  de- 
mands the  third  part  of -acres  of  land,  &c.  as 

the  dower'  of  the  demandant,  i  of  the  endowment  of 
J.  S.,  heretofore  her  husband,'  &c.  ;  and  the  general 
issue  is,  that  J.  S.  was  not  seised  of  such  estate,  &c. 
that  he  could  endow  the  demandant  thereof,  &c.(7)  : 
A  mode  of  negation,  that  is  merely  argumentative. 

These  two  anomalies  appear  to  form  the  only 
original  exceptions  to  the  general  rule,  that  every 
issue  must  consist  of  a  direct  affirmative,  and  a  direct 
negative.  And  the  only  reason  for  these  exceptions 

(fc)  Lawes'  PI.  Jlpp.   232—3.     3  Black.   Com.  195—6.  305. 
Ib.  Jlpp.  No.  I,  §  6.     2  Stra.  1177.     3  Chitt.  PI.  652. 

(0  lid. 

(ft)  3  Black.  Com.  183. 

(/)  2  Saund.  329.  330.     Stearns'  Real  Actions,  473.  475. 


OF  THE  GENERAL  ISSUE,  &c. 

would  seem  to  be,  that  they  are  conformable  to  the 
ancient  precedents. 

§  7.  An  issue  in  fact,  taken  upon  the  declaration, 
is  either  general  or  special.  The  former  is  called 
the  general  issue ;  the  latter,  a  special  issue(wi). 
Some  respectable  authorities,  however,  add  a  third, 
which  they  denominate  a  common  issue(n) — a  name 
given  to  no  other  than  the  single  plea  of  non  estfac- 
tum,  when  pleaded  to  an  action  of  covenant  broken ; 
for  the  reason  of  which,  vid.  post,  note  2,  page  308. 

§  8.  The  general  issue  denies  all  the  material 
allegations  in  the  declaration  (o) ;  by  which  are 
meant  all  those,  which  the  plaintiff  may  be  required 
to  prove :  Or,  (more  precisely),  it  enables  the  de- 
fendant to  contest  all  such  allegations,  in  evidence  ; 
and  actually  puts  the  plaintiff  upon  the  proof  of  all, 
or  any  of  them,  which  are  thus  contested.  A  special 
issue  denies  only  some  particular  part  of  the  declara- 
tion, which  goes  to  the  gist  of  the  actionQo).  This 
distinction,  between  general  and  special  issues,  ap- 
plies only  to  those,  which  are  tendered  upon  the  de- 
claration :  An  issue,  joined  upon  any  of  the  pleadings 
which  follow  the  declaration,  being  called  simply, 
'  an  issue',  without  further  description. 

(m)   Co.  Litt.  126.  a.     Bac.  Abr.  Pleas,  &c.  G.  1. 
(n)  Tidd,  598.     Lawes'  PI.  110.  113.  vid.  8  T.  R.  282. 
(o)   Bac.  Abr.  Pleas,  &c.  G.  1.     Lawes'  PI.  110.     3  Black. 
Com.  305. 

(p)  Co.  Litt.  126.  a.     Lawes'  PI.  112.  113.  145. 


OF  THE  GENERAL  ISSUE,  &<•. 

CHAP. 

I.  Of  the  general  issue —  vi. 

PART  i. 

^  9.  Though  this  plea  denies  all  that  is  material 
in  the  declaration ;  the  denial  is  not  usually*  ex- 
pressed  in  the  precise  terms  of  the  allegations  de- 
nied ;  but  by  a  shorter,  and  more  simple  formula, 
which  is  tantamount  to  a  specific  and  literal  nega- 
tion of  all  and  each  of  them.  Thus  in  the  action  of 
trespass — however  numerous  the  acts  complained 
of  may  be — the  general  plea  of  '  not  guilty,'  (i.  e. 
that  the  defendant  is  not  guilty  of  the  said  trespasses, 
fcc.  or  of  any  part  thereof),  is  equivalent  to  an  alle- 
gation that  he  did  not,  with  force  and  arms  and 
against  the  peace,  commit  this,  or  that  or  the  other 
wrong  alleged,  the  acts  complained  of,  or  any  of 
them.  And  a  similar  explanation  might  be  given  of 
all  other  general  issues. 

^10.  The  general  issues,  in  the  principal  actions 
now  in  use,  are  the  following  : — 

In  personal  actions  ex  delicto,  in  general,  whether 
sounding  in  trespass  or  case,  and  whether  founded  on 
misfeasance  or  nonfeasance,  and  including  ejectment, 
the  general  issue  is,  '  Not  guilty'(g'). 

In  replevin,  the  general  issue  is,  '  Non  cepit'(r)  : 

I  n  disseisin,   i  Nul  tort,  nul  disseisin9 (s)  : 

In  detinue,  '  Non  detinet'(t) : 

(q)  Bac.  Abr.  Pleas,  &c.  G.  1.  I.  1.  3  Black.  Com.  305. 
App.  No.  II.  §  4.  Gilb.  II.  C.  P.  57. 

(r)  Bac.  Abr.  Replevin,  I.     2  Chitt.  PI.  508. 
(s)  3  Black.  Com.  305. 
(0  2  Chitt.  PI.  495. 


OF  THE  GENERAL  ISSUE,  &c. 

In  debt  on  simple  contract,  '  Nil  debef(u)  ; 
or,  against  an  executor  or  administrator,  '  Non  deti- 
net'(v)  : 

In  debt  on  specialty,  '  Non  est  factum'(w)  : 

In  debt  on  judgment  or  recognizance,  '  Nul  tiel  re- 
cord'(x)  : 

In  debt  on  a  penal  statute,  the  more  appropriate 
general  issue  is  nil  debet ;  because  it  corresponds  to 
the  form  of  the  action(?/).  But  as  the  object  of 
the  action  is  to  enforce  a  penalty  for  an  alleged  of" 
fence ;  it  seems  that  '  Not  guilty'  may  be  substitut- 
ed for  '  Nil  debet'(z). 

In  covenant  broken,  the  general  issue  is  the  same 
as  in  debt  on  specialty — '  Non  est  factum'(a) ;  or 
at  least,  this  is  the  only  general  plea,  which  goes  in 
bar  of  the  action  (2). 

(u)  3  Black.  Com.  305.     2  Chitt.  PI.  459. 
(v)  Bac.  Abr.  Pleas,  &c.  I.  1.     2  Mod.  266.     1  Chitt.  PI.  476. 
(w)  lid. 

(x)  3  Black.  Com.  330.  331.     2  Chitt.  PI.  488. 
(y)  1  T.  R.  462.   1  Chitt.  PI.  481.  2  Ib.  459.  2  Mass.  R.  522. 
(z)  Mo.  302.  914.     Cro.  Eliz.  257.  621.  766.    Noy,  56.    Bac. 
Abr.  Pleas,  &c.  I.  1.     1  T.  R.  462.     5  Mass.  R.  270. 
(a)  2  Chitt.  PI.  496. 

(2)  According  to  respectable  authorities,  (Tidd,  593.  Lawes' 
PI.  113.  1  Chitt  PI.  482),  there  is,  to  a  declaration  in  covenant 
broken,  no  general  issue  :  Since  the  plea  ofnon  estfactum,  which 
denies  the  deed  only,  and  not  the  breach  does  not  put  the  whole 
declaration  in  issue.  And  therefore,  it  is  said,  that  this  plea,  when 
used  in  this  particular  action,  is  to  be  called  '  the  common  issue.' 
It  must  indeed  be  admitted,  that  there  is  a  difference  between  the 
effect  of  the  plea  of  non  est  factum,  in  covenant  broken,  and  in  debt 
on  specialty.  A  valid  bond,  or  single  bill,  necessarily  creates  a 


OF  THE  GENERAL  ISSUE,  &c.  3Q9 

In  assumpsit,  the  general  issue  is  '  Non  assump-    CHAP. 
sit'(fc)  :  Or,  when  the  action  is  against  an  executor      vi. 
or  administrator,    '  that   the    said   E.    F.    deceased'  PART  i. 
(the  testator,  or   intestate),    '  did  not  undertake,   or  ' 
promise',  &c.     '  Not  guilty'  was  also  formerly  held 
to  be  a  proper  general  issue  in  assumpsit(c) ;  be- 
cause  the  action,   being   entitled    '  trespass   on   the 
case',  was  deemed  to  partake  of  the  nature  of  an 
action  ex  delicto.     But  as  the  action  is,  in  substance, 
founded  exclusively  on  contract ;  the  last  mentioned 
plea  is  not  now  considered  as  a  proper  answer  to  it ; 

(b)  3  Black.  Com.  305.     2  Chitt.  PI.  423. 

(c)  Bac.   Abr.    Pleas,  &c.    G.    2.    I.  1.      1  Lev.  142.     2  Stra. 
1022.     Esp.  Dig.  167. 

present  debt ;  and  the  plea  in  question,  by  denying  the  deed,  ne- 
cessarily and  directly  denies  the  alleged  debt :  Whereas  a  covenant 
does  not  necessarily  create,  in  the  covenantee,  a  right  to  damages ; 
because  a  breach  may  never  occur.  And  though,  if  there  be  no 
covenant,  there  can  be  no  breach  ;  yet  a  denial  of  the  covenant 
denies  the  breach,  only  by  consequence,  and  not  directly.  As 
however  non  est  factum  is  confessedly  a  good  plea,  in  covenant 
broken,  and  also  the  most  general  form  of  denial,  of  which  the  ac- 
tion admits  ;  there  appears  to  be  little  use  in  distinguishing  it,  by 
the  anomalous  appellation  of  a  '  common  issue.'  Indeed,  the  only 
peculiarity  which  distinguishes  it,  in  this  action,  from  other  general 
issues — -viz.  that  it  does  not  put  the  whole  declaration  directly  in 
issue — would  seem  rather  to  bring  it  within  the  description  of  a 
special  issue.  At  any  rate,  if  it  is  necessary  or  proper  to  give 
this  plea,  in  the  action  of  covenant  broken,  the  peculiar  denomina- 
tion of  a  common  issue  ;  it  would  seem  equally  so,  to  distinguish 
the  same  plea  by  the  same  name,  when  pleaded  to  a  special  dec- 
laration, in  debt  on  a  penal  bond.  For  the  same  reason,  which 
authorizes  its  peculiar  designation  in  the  former  action,  exists,  to 
the  same  extent,  in  the  latter. 

40 


310 


OF  THE  GENERAL  ISSUE,  &c. 


CHAP,    but  is  still  held  to  be  aided  by  verdict,  as  being  only 
vi.      an  informal  issue  (d). 

PART    I. 


In  debt  for  rent  on  a  demise,  'rien  en  arrere' ; 
(nothing  in  arrear),  as  well  as  nil  debet,  is  a  good 
general  issue  (e).  For  the  former  plea,  as  well  as 
the  latter,  directly  denies  that  any  rent  is  due ;  and 
is,  therefore,  a  direct  denial  of  the  alleged  debt. 

§11.  But  in  covenant  broken  for  rent,  (in  which 
the  covenant  itself  is  set  out,  and  the  action  found- 
ed upon  it),  '  rien  en  arrere,'  is  not  a  good  plea(jT)  : 
Because  it  impliedly  confesses  both  the  covenant  stat- 
ed, and  the  breach,  and  alleges  nothing  in  avoidance 
of  either  :  Whereas,  in  the  preceding  case  of  debt  for 
rent,  though  reserved  by  deed,  it  is  neither  necessary 
nor  usual  to  allege  the  deed ;  and  if  alleged,  it  is 
but  inducement,  and  therefore  need  not  be  directly 
answered  in  pleading.  And  the  gist  of  the  action  of 
debt  being  the  mere  fact  of  rent  in  arrear ;  the  plea 
of  nil  debet,  or  rien  en  arrere,  as  it  is  a  direct  denial 
of  that  fact,  is  a  proper  general  issue(^). 

On  a  similar  principle  to  that  which  governs  in 
covenant  broken,  nil  debet  is  not  a  good  plea  to  debt 
on  bond(^)  ;  and  the  plea  is  ill,  on  general  demur- 

(d)  lid. 

(e)  Cowp.  588.     5  Chitt.  PI.  486.  z.     Bac.  Abr.  Pleas,  &c.  I. 
1.     2  Saund.  297.  (n.  1.)     2  Ld.  Ray.  1503.     2  Chitt.  PI.  486. 

(/)  Cowp.  589.     2  Chitt.  PI.  486.  n.  c. 

(g)  2  Saund.  297.  (n.  1.)  Cowp.  589.  Bull.  N.  P.  170.  2 
Chitt.  PI.  486.  n.  e. 

(h)  2  Johns.  R.  183.     8  Ib.  82.     2  Wils.  10.     Cun.  R.  75. 


OF  THE  GENERAL  ISSUE,  &c.  £|  ] 

rer  :  It  being  the  nature  of  the  plea,  and  not  the  man-    CHAP. 
ner  of  pleading  it,  that  is  defective(i).  vi. 

PART    I. 

&  12.  But  if  nil  debet  is  pleaded  to  debt  on  bond, 

*  '  .  'Nil  debet' 

and  the  plaintiff,  instead  of  demurring,  accepts  the  l°  debt  on 

r  \  °  .  bond,   effect 

plea,  and  joins  in  the  issue  ;  the  defendant  is  at  °f- 
liberty  to  prove  any  and  every  special  matter  of  de- 
fence, which  might  be  proved  under  the  same  plea, 
in  debt  on  simple  contract(&) — such  as  want  of 
consideration,  payment,  release,  usury,  infancy,  &c. 
For  the  plaintiff,  by  accepting  the  plea,  founds  his 
demand  solely  upon  the  defendants  being  indebted ; 
and  thus  waves  the  estoppel,  or  conclusive  evidence 
of  that  fact,  which  the  deed  would  have  furnished 
against  the  defendant,  under  the  plea  of  non  est  fac- 
tum. 

^13.  Yet  when  in  debt,  the  plaintiff  counts 
upon  a  deed  only  as  inducement  to  the  action,  nil 
debet  is  a  good  plea — as,  in  the  before  mentioned 
case  of  debt  for  rent,  due  on  a  deed  of  lease(/}. 
For,  in  this  case,  the  subsequent  occupation  of  the  de- 
fendant, under  the  demise,  is  the  gist  of  the  action  ; 
because  rent  is  considered  as  a  profit,  issuing  out  of 
land ;  and  when  it  is  sued  for,  as  a  debt,  the  law 
considers  the  debt  as  arising  out  of  the  receipt  of  the 
issues  and  profits  by  the  tenant,  and  not  from  the 
deed. 

(»)   2  Wils.  10.     Esp.  Dig.  224. 

(k)  5  Esp.  Rep.  38.     1  Chitt.  PI.  478.     Vid.  4  McCorcl,  380. 
(/)   1   Saund.  276.  (n.  1.)     2  Ib.   297.  (n.  1.)     1   New  Rep. 
109.    2  Chitt.  PI.  174.  n.  z. 


OF  THE  GENERAL  ISSUE,  &c. 


CHAP.        §  14.  The  general  issue,  being  a  plea  to  the  ac~ 

vi.       tion,  refers  to  the  count,  and  not  to  the  writ.     Hence, 

PART  i.  if  in  account,  the  writ  charges   the  defendant  as  re- 

ceiver,  generally,  and   the   count,  as  receiver  by  the 

Goes  to  the  7 

count  only,  hands  of  A.;  the  plea,  'never  receiver,'  denies 
only  that  the  defendant  was  receiver  by  the  hands 
of  A.;  and  the  plaintiff  is  not  permitted  to  give 
evidence  of  the  defendant's  being  his  receiver  in 
any  other  way(m). 

§  15.  The  conclusion  of  the  general  issue,  as  well 
as  of  all  issues  in  fact,  must  conform  to  the  particular 
mode  of  trial,  prescribed  by  law,  for  the  determina- 
tion of  the  matter  in  issue.  And  the  mode  of  trial 
depends,  in  all  cases,  upon  the  nature  of  the  fact  to  be 
tried  ;  as  facts  of  different  kinds  require  different 
modes  of  trial. 

Different  §  16.  The  different  modes  or  species  of  trial, 
trying8.  °f  established  by  the  common  law,  in  civil  cases,  are, 
1.  by  record ;  2.  by  inspection ,  or  examination;  3.  by 
certificate ;  4.  by  witnesses,  (without  the  intervention 
of  a  j  ury)  ;  5.  by  wager  of  battel ;  6.  by  wager  of 
law;  1.  by  jury(n).  These  different  methods  of 
trial,  except  the  first  and  the  last,  being  now  either 
obsolete,  or  rarely  in  use  in  the  United  States(3)  ; 

(m)  Co.  Litt.  126.  a.  Bac.  Abr.  Pleas,  &c.  G.  1. 
(n)  3  Black.  Com.  330—348. 

(3)  Certain  facts— as  that  of  marriage  in  particular — are 
proveable,  in  the  courts  of  our  country,  generally,  by  certificate; 


OF  THE  GENERAL  ISSUE,  &c.  3]  3 

it  seems  unnecessary,  in  this  Essay,  to  treat  particu-    CHAP. 
larly  of  any  of  them,  except  the  two  last  mentioned.       vi. 
As  to  the  others,  it  will  be  sufficient  to  refer  to  the  PART  i. 
explanation  given  of  them,  in  the  commentaries  of 
Sir  W.  Blackstone,  vol.  3,  pp.  330—348(4). 

^17.  The  trial  by  record  takes  place,  whenever  By  record. 
a  record  is  directly  put  in  issue,  by  the  plea  of  nul 
tiel  record  (o).  This  plea,  (the  only  one  by  which 
a  record  can  be  directly  put  in  issue),  concludes  with 
a  verification ;  and  the  issue  is  then  closed  by  the 
adverse  party's  re-affirming  the  existence  of  the  re- 
cord, and  praying  that  it  may  be  inspected  by  the 
court(jo).  For  a  record  is  of  too  high  a  nature  to  be 
tried  by  a  jury,  or  in  any  other  way,  than  by  itself- — 
i.  e.  by  the  court,  on  personal  inspection  of  it. 

^18.  But  most  issues  in  fact  are  tried  by  jury :  Byjury. 
And   therefore  when  any  matter,  not  of  record,  is 

(o)  3  Black.  Com.  330—1. 

(;;)  Lawes'  PI.  146.  148.  226.  236.  2  Chitt.  PI.  488.  602. 
Com.  R.  533.  2  Wils.  113.  114.  2  T.  R.  443.  5  East,  473. 
Vid.  2  Bos.  &  P.  302.  Steph.  PI.  255. 

but  I  am  not   aware  that  the  issue  upon  such  fact  ever  concludes 
to  the  certificate.^ 

(4)  In  the  State  of  Connecticut,  any  issue  in  fact,  in  a  civil 
case,  may,  by  the  agreement  of  both  parties,  be  tried  by  the  court. 
But  when  the  issue  is  to  be  thus  tried,  the  agreement  of  the  par- 
ties must  be  suggested,  in  the  conclusion  of  the  plea  tendering  the 
issue  ;  and  this  is  done  in  ihe  form  following  :  '  Of  (his  the  said 
C.  D.  by  agreement,  puts  himself  upon  the  court' — or,  '  This 
the  said  A.  B.  by  agreement,  prays  may  be  inquired  of,  by  the 
court.' 


314  OF  THE  GENERAL  ISSUE,  &c. 

CHAP,    denied  by  the  general  issue,  the  plea,  in  general,  (in 
vi.      all  cases,  indeed,  where  no  one  of  the  other  modes  of 
PART  i.  trial,  above  enumerated,  is  necessary),  concludes  to 
the  country,  i.  e.  the  jury(^).     And  all  issues  in  fact, 
whether  general  or  special,  if  triable  by  jury,  con- 
clude in  the  same  manner(r). 

§19.  The  form  of  concluding  a  plea  to  the 
country,  when  the  denial  is  on  'the  part  of  the  de- 
fendant, (as  is  always  the  case,  when  the  general 
issue  is  pleaded),  is  as  follows  :  '  And  of  this  the 
said  C.  D.  puts  himself  on  the  country.'  But  when 
the  denial  is  on  the  part  of  the  plaintiff,  (i.  e.  when 
he  puts  in  issue  the  defendant's  allegations),  the 
established  form  of  the  conclusion  is  in  these  words  : 
*  And  this  the  said  A.  B.  prays,  may  be  inquired  of 
by  the  country'(s). 

But  where  the  denial  or  traverse,  though  it  come 
on  the  part  of  the  plaintiff,  is  in  negative  terms  (as 
when  he  denies  the  defendant's  affirmative  allega- 

o 

tions),  he  may  conclude  in  the  former  of  these 
modes  :  It  being  deemed  somewhat  incongruous,  to 
pray  that  a  negative  '  may  be  inquired  of '(£).  And 
as  the  mere  mode  of  concluding  to  the  country  is, 
essentially,  but  matter  of  form ;  either  of  the  above 

(q)  3  Black.  Com.  315.     Co.  Litt.  126.  a.     Bac.  Abr.  Pleas, 
&c.  G.  1. 
(r)  lid. 

(s)  3  Black.  Com.  313.     Bac.  Abr.  Pleas,  &c.  G.  1. 
(0  10  Mod.  166.     1  Lev.  281.     Rast.  Ent.  20.  b.  36.  324. 


OF  THE  GENERAL  ISSUE,  &c.  315 

formula  might  now,  perhaps,  be  used  without  ha-   CHAP. 
zard,  by  either  party(w).  vi. 

PART  I. 

&  20.  Whenever  one  of  the  parties  concludes  to 

The  simili- 

the  country,  and  thus  refers  the  trial  to  the  jury,  ter. 
the  issue  is  joined,  and  made  ready  for  trial,  by  the 
opposite  party's  adding,  'and  the  said  A.  B.'  (or 
'  C.  D.')  *  does  the  like'(V).  This  addition,  which, 
from  its  concluding  word,  is  called  the  similiter, 
merely  expresses  the  concurrence  of  the  party,  to 
whom  the  issue  is  tendered,  with  his  adversary,  in 
referring  the  trial  to  the  jury.  It  is  however,  in 
strictness,  no  part  of  the  pleadings  ;  since  it  neither 
affirms  nor  denies  any  fact,  in  maintenance  of  the  ac- 
tion, or  the  defence. 

^  21.  The  similiter  would  therefore  seem,  on 
principle,  to  be  only  matter  of  form ;  and  as  such, 
the  omission  of  it  would  seem  to  be  aided  by 
verdict.  And  so  it  has  been  determined,  in  the 
states  of  Connecticut  and  Massachusetts^).  In- 
deed the  Connecticut  postea  distinctly  states,  that 
the  parties  joined  in  referring  the  issue  to  the  jury 
— the  only  fact,  which  the  similiter  is  designed  to 
show. 

In    the   English   courts,   however,  judgment  has 
formerly  been  arrested  after  verdict,  by  reason   of 

(u)   10  Mod.  166.     Steph.  PI.  248.     Vid.  7  Pick.  117. 

(r)  3  Black.  Com.  315.  Co.  Litt.  126.  a.     Lawes'  PI.  147-8. 

(w)  2  Day,  392.     9  Mass.  R.  533. 


OF  THE  GENERAL  ISSUE,  &c. 

CHAP,  tne  omission  of  the  similiter(x).  But  the  setting 
vi.  aside  of  verdicts,  for  this  cause,  has,  in  later  times, 
PART  i.  been  complained  of  as  unreasonable,  in  the  courts  of 
Westminster ;  and  the  omission  has  consequently 
been  allowed,  upon  the  slightest  possible  grounds,  to 
be  supplied  after  verdict,  by  way  of  amendment (y). 
At  this  day  indeed,  the  court,  it  seems,  will,  after 
verdict,  as  a  matter  of  course,  allow  the  record  to  be 
amended,  by  the  insertion  of  the  similiter^  when 
omitted,  if  the  allowance  be  not  inconsistent  with 
the  justice  of  the  case(,z). 

•Modoet  &  22.     The  words  'in   manner  and    form',    &c. 

forma',  ef-  ,       .  1  . 

feet  of.  which  are  regularly  used  in  tendering  an  issue, 
either  general  or  special,  are  sometimes  of  the  sub- 
stance of  the  issue,  and  sometimes  merely  words  of 
form.  When  they  are  of  the  substance  of  the  issue, 
they  put  in  issue  the  circumstances,  alleged  as  con- 
comitants of  the  principal  matter  denied  by  the 
pleader  ;  (such  as  time,  place,  manner,  &c.)  :  When 
not  of  the  substance  of  the  issue,  they  do  not  put  in 
issue  such  circumstances  (a).  And  to  determine 
when  they  are  of  the  substance  of  the  isssue,  and 
when  not  so,  the  established  criterion  is,  that  when 
the  circumstances  of  manner,  time,  place,  &c.  alleged 
in  connexion  with  the  principal  fact  traversed,  are 
originally  and  in  themselves  material,  and  therefore 

(x)  2  Saund.  319.  a.  (n.  6.)  Yelv.  65.  n.  8  Mod.  376. 
Stra.  641.  1117.  3  Brod.  &  Bing.  1.  6  Moore,  51. 

(y)   3  Burr.  1793.     Cowp.  407.     1  New.  Rep.  28. 

00  2  Bing.  384.  &  vide  2  Chitt.  Rep.  25.  1  Stark.  R.  400. 
(323.)  6  Greenleaf,  327. 

(a)  Bac.  Abr.  Pleas,  &c.  G.  1.     Lawes'  PI.  120.     Hardr.  39. 


OF  THE  GENERAL  ISSI'E,  &.-. 

necessary  to  l>c  proved  as   stated,  the  words  imodo    CHAP. 
et  forma?  are  of  the   substance  of  the   issue,  and  do       vi. 
consequently  put   those  concomitants  in  issue  :  But,  PART  i. 
that   when   such  concomitants  or  circumstances   are 
not  in  themselves  material,  and  therefore  not  neces- 
sary to  be  proved   as    stated,   the  words  '  modo  et 
forma\  are  not  of  the   substance   of  the  issue,  and 
consequently  do  not  put   them   in   issue(6).       The 
result  then  is,  that  these  words  may  always  be  safe- 
ly used,  in  tendering  an  issue  ;  because,  in  their  legal 
effect,  they  always  put  in  issue  all  material  circum- 
stances, and  no  other(c). 

^  23.  Hence  if  one  party  pleads  a  feoffinent  by 
deed,  and  the  other  traverses  the  feoffinent,  modo 
et  forma  as  alleged  ;  the  deed,  as  well  as  the  en  - 
feoffing  act,  is  put  in  issue(J)  :  And  therefore  proof 
of  a  feoffinent  without  deed,  is  inadmissible,  under 
this  issue.  For  though  a  feoffment  without  deed  is 
good,  at  common  law ;  yet  when  it  is  pleaded  as  by 
deed,  the  deed  becomes  material,  as  an  essential  part 
of  the  conveyance. 

• 

^  24.  But  in  trespass  for  an  assault  and  battery, 
alleged  to  have  been  committed  with  swords,  dag- 
gers, &c.,  if  the  defendant  pleads  not  guilty  '  in  man- 
ner and  form' ;  the  plaintiff  is  at  liberty  to  prove  a 
battery,  committed  with  any  other  weapon.  And 

(6)  Lawes'  PI.  120.      Latch,  92-3. 

(c)  2  Saund.  319.  (n.  6.)  Lawes'  PI.  49.  120. 

(</)  Lilt.  $  4s:i.      Co.  Lilt    2S1.  b. 

41 


318 


OF  THE  GENERAL  ISSUE.  &c. 


CHAP,    tne  same  rule  holds,  on  an  indictment  for  murder, 
vi.      alleging  a  mortal  wound  to  have  been  inflicted,  with 
PART  i.  any  particular  weapon :  The  form  or  species  of  the 
~""""""~~"  instrument  of  the  battery  or  homicide,  being  an  im- 
material circumstance(e). 

^  25.  So  also  when  time,  place,  number,  quantity, 
fee.  alleged  in  the  declaration,  are  not  in  themselves 
material,  and  therefore  not  necessary  to  be  proved 
as  alleged,  the  general  issue,  with  the  words,  '  modo 
et  forma',  does  not  put  them  in  issue(y).  And 
where  a  mis-statement,  in  any  of  these  particulars, 
does  not  occasion  a  variance,  they  are  in  general  im- 
material. 


^  26.  And  it  seems,  that  the  words,  '  in  manner 
and  form',  fee.  though  almost  universally  used,  in 
tendering  an  issue  in  fact,  are  in  no  case,  indispen- 
sable, even  in  point  of  form,  to  the  legal  sufficiency 
of  the  issue,  or  traverse,  in  which  they  are  emplov- 


^  27.  Under  the  present  head,  it  may  be  proper 
to  treat  of  immaterial  and  informal  issues,  whether 
general  or  special  in  their  character. 

immaterial        An  immaterial  issue  is  one,  which,  passing  by  what 
lpost.'        is  material  in  the  previous  adverse  pleading,  is  joined 

(c)  2  Hale,  P.  C.  185.  291.     9  Co.  67.    4  Black.   Com.  196. 

2  M'Nall.  Ev.  520.  522.   1  Russ.  on  Crimes,  467.  (2d  ed.) 

(/)  Lawes'  PI.   48-9.    120.     Cro.  Eliz.  12.  13.     Cowp.  260. 

3  Lev.  334.     Com.  Dig.  Pleader,  G.  1. 

(g)  Com.  Dig.  Pleader,  G.  1.      Lawes'  PI.  120. 


OF  THE  GENERAL  ISSUE,  &c. 

on  an  immaterial  point ;  i,  e.  a  point  not  decisive  of  CHAP. 
the  right  of  the  cause(/i)  :  As  where  issue  is  ten-  vi. 
dered  upon  matter  of  mere  form,  or  upon  matter  of  PART  I. 
inducement  or  aggravation,  or  upon  what  is  imperti- 
nent,  or  not  alleged  in  the  adverse  pleading.  Thus, 
if  in  assumpsit  against  an  executor,  on  a  promise  of 
his  testator,  the  defendant  pleads  that  he,  himself, 
did  not  promise ;  or  if  in  debt  on  bond,  the  defend- 
ant pleads  not  guilty ;  or  in  trover,  that  he  did  not 
Jind  the  goods  in  question ;  the  issue  tendered  is 
immaterial,  and  of  course  ill  in  substance  ;  since  the 
finding  either  way  cannot  enable  the  court  to  dis- 
cover which  party  is  entitled  to  judgment(i).  And 
such  an  issue,  being  radically  defective,  is  not  aided 
by  verdict(k).  ( Vid.  Arrest  of  Judgment,  post.  ch. 
10). 

^  28.  When  a  material  allegation  is  traversed  in 

. 

an  improper  or  inartificial  manner,  the  issue,  taken 
upon  it,  is  called  an  informal  issue(l).  This  defect 
is  aided,  after  verdict,  by  the  statute  32  H.  8, 
ch.  30. 

But  if  the  party,  to  whom  such  an  issue  is  tender- 
ed, demurs  for  the  informality,  instead  of  joining  in 
the  issue  ;  the  demurrer  must  be  special,  by  the  sta- 

(fc)     Bac.  Abr.  Pleas,  &c.  G.  2.     3  Black.  Com.  395. 

(i)  lid.  2  Vent.  196.  Carth.  371.  2  Mod.  137.  J39.  2 
Saund.  319.  a.  (n.  6.)  Gilb.  H.  C.  P.  147.  1  Wils.  338. 

(k)   lid.     3  Pick.  124. 

(I)  Bac.  Abr.  Pleas,  &c.  G.  2.  N.  5.  2  Saund.  319.  a.  (n. 
6.)  Gilb.  H.  C.  P.  147. 


320 


Negative 
pregnant. 


OF  THE  GENERAL  ISSUE.  &<•. 

tute  27  Eliz.  eh.  5  ;  though  the  rule  was  otherwise, 
at  common  law. 

^  29.  Under  the  class  of  informal  issues,  may 
be  considered  such  as  are  joined  upon  a  negative 
pregnant,  or  an  affirmative  pregnant.  The  former  is 
a  negative  allegation,  involving,  or  admitting  of,  an 
affirmative  implication(m),  or  at  least,  an  implication 
of  some  kind,  favorable  to  the  adverse  party (5). 
An  affirmative  pregnant  is  an  affirmative  allegation 
implying  some  negative,  in  favor  of  the  adverse 
party  (V). 

^  30.  As  a  general  rule  therefore,  an  issue  can- 
not properly  be  joined  upon  a  negative  pregnant(o)  : 
Because  the  affirmative  implication,  to  which  it  is 
open,  destroys  the  effect  of  the  denial,  or  traverse. 
Thus,  if  the  defendant  pleads  in  bar  a  release,  made 
since  the  date  of  the  writ ;  and  the  plaintiff  replies, 
that  the  said  supposed  writing  '  is  not  his  act,  since 
the  date  of  the  writ ;'  the  replication  is  a  negative 
pregnant.  For  it  admits,  by  implication,  a  release 
made  before  the  date  of  the  writ,  and  which  would 

(MI)  Lit.  Rep.  65.  Com.  Dig.  Pleader,  R.  5.  2  Lill.  Ab. 
274.  Bac.  Abr.  Pleas,  &c.  N.  6, 

(»)  lid. 

(o)  Co.  Litt.  126.  a.  303,  a.  Cro.  Jac.  87.  560.  Lawes'  PI. 
113.  114. 

(5)  An  issue  of  this  kind  is  here  classed  with  informal  issues, 
because  the  ground  of  objection  to  it  is,  not  that  it  is  defective  in 
substance,  as  not  involving  what  \smaterialorissuable;  but  that 
it  improperly  includes,  wilk  what  is  material  and  issuable,  what  is 
unnecessary  and  improper  to  be  put  in  issue. 


OF  THE  GENERAL  ISSUE,  &c. 

be   as  effectual   a  bar   to    the    action,  as  one   made    CHAP. 
afterwards.     (Vid.  eh.  7,  ^  34.  35.)  vi. 

PART    I 

^  31.  Aii  issue,  joined  upon  a  negative  pregnant, 
differs  from  an  immaterial  issue,  properly  so  called, 
in  this  : — That  the  terms  of  the  former  include, 
regularly,  as  well  what  is  not  material,  (as  time, 
place,  manner,  &c.),  as  what  is  so ;  and  in  all  cases, 
leave  it  uncertain,  which  of  two  or  more  things  the 
pleader  intends  to  contest:  Whereas  a  traverse, 
tendering  an  issue,  strictly  immaterial,  includes  only 
what  is  immaterial.  Thus,  in  the  example  last 
given,  of  a  plea  of  release,  after  the  date  of  the 
writ,  the  traverse,  in  the  replication,  extends  as 
well  to  the  time,  alleged  in  the  plea,  and  which  is 
immaterial,  as  to  the  release  itself:  And  as  it  does 
not  appear,  from  the  terms  of  the  traverse,  upon 
which  of  those  points  the  plaintiff  intends  to  rest 
his  demand  ;  the  replication  may  be  considered  as 
ill,  for  this  uncertainty.  The  proper  mode  of  tra- 
versing the  release  would  have  been,  by  replying 
that  it  is  '  not  his  act,  in  manner  and  form?  fcc. ; 
or,  that  it  '  is  not  his  act,'  without  the  subsequent 
words. 

§  32.  The  same  explanation  may  be  applied  to 
the  following  case : — In  replevin,  the  defendant 
avowed  the  taking  of  the  plaintiff's  cattle  for  rent 
arrear,  reserved  on  a  lease ;  alleging,  that  on  the 
Jirst  day  of  Nov.,  in  the  18th  year  of  the  reign  of 
the  king,  he  demised  to  the  plaintiff,  &c.  :  The 
plaintiff  pleaded  to  the  avowry,  that  the  avowant, 


322 


OF  THE  GENERAL  ISSUE,  &c. 

'  on  the  said  first  day  of  Nov.,  in  the  said  18th  year, 
&c.,  did  not  demise,'  &c.  in  manner  and  form,  &c. 
In  this  case,  the  traverse  of  the  plaintiff  was  a  nega- 
tive pregnant;  as  it  included  the  time  of  the  de- 
mise, which  was  immaterial.  But  the  avowry  being 
itself  defective  ;  the  case  was  decided  on  other 
grounds(o).  The  traverse  should  have  been,  that 
the  avowant  '  did  not  demise,  in  manner  and  form.' 


§  33.  Again  :  Where  in  trespass  for  cutting  the 
plaintiff's  trees,  the  defendant  pleaded,  that  he  cut 
them  by  command  of  the  plaintiff  ;  a  replication, 
that  the  defendant  '  did  not  cut  them  by  command 
of  the  plaintiff,'  was  held  to  be  a  negative  pregnant  — 
as  the  denial  extended  as  well  to  the  act  of  cutting 
the  trees,  as  to  the  command(p). 

The  traverse  should  have  been  limited  to  the  al- 
leged command,  in  one  of  the  forms  last  mentioned. 

HOW  aided.  §34.  By  the  statute  32  H.  8,  c.  303  an  issue, 
joined  on  a  negative  pregnant,  is  aided  by  a  verdict 
for  either  of  the  parties^). 

But  by  the  common  Jaw,  such  an  issue  is  not 
thus  aided,  unless  the  finding  shows  for  which  party 

(o)  2  Saund.  317.     2  Lev.  11. 

(p)  Bac.  Abr.  Pleas,  &c.  I.  6.  Doct.  PI.  256.  &  vid.  Com. 
Dig.  Pleader,  R.  5.  2  Leon.  197.  Cro.  Jac.  87.  Steph.  PI. 
381—384. 

(q)  Co.  Litt.  126.  a.  303.  a.  Cro.  Jac.  87.  312.  Gilb.  H.  C. 
P.  147.  2  Saund.  319.  (n.  6.) 


OF  THE  GENERAL  1JSSIT..  &<-. 

judgment  ought  to  be  given(r).  But  generally,  at  CHAP. 
least,  and  probably  in  all  cases,  a  verdict  for  the  vi. 
party,  who  tenders  the  issue  by  a  negative  pregnant,  PART  i. 
will  not  show  for  which  party  judgment  ought  to  be  ~ 
given  :  Whereas,  a  verdict  for  the  party,  to  whom 
the  issue  is  tendered,  will,  regularly,  show  (if  there 
is  no  substantial  defect  in  the  previous  pleading, 
on  his  own  part),  that  he  is  entitled  to  judgment. 
Thus,  in  the  first  example  already  given,  of  an  issue 
of  this  kind,  (ante,  §  30) — where  the  defendant 
pleaded  a  release  since  the  date  of  the  writ,  and  the 
plaintiff  denied,  in  his  replication,  that  he  had  re- 
leased '  since  the  date  of  the  writ' ;  a  verdict  for 
the  defendant  would  have  shown  that  he  was  en- 
titled to  judgment ;  although  a  finding  the  other 
way  would  have  decided  nothing.  And  in  each  of 
the  other  foregoing  examples,  (ante,  ^  32.  33),  a 
verdict  finding  the  affirmative  of  the  issue,  would 
have  shown  that  he,  to  whom  the  issue  was  ten- 
dered, was  entitled  to  judgment,  unless  some  sub- 
stantial fault  could  be  found  in  his  own  previous 
pleading. 

^  35.    If  however    the  party,   to  whom   issue  is 
tendered  on  a  negative   pregnant,   demurs  for  that 
cause,  instead  of  joining  in  the  issue  tendered  ;  the  £"£•  *^*- 
demurrer  must,  under  the  English  statutes  of  jeofails  § 9- 
(27  Eliz.  c.  5,  &  4  Ann.  c.  16),  be  special(s).     But 
by  the  common  law,  which  in  general  treats  substan- 

(r)  3  Black.  Com.  395.     2  Vent.  196.     2  Stra.  994.  Cun.  R. 
71.  106.     2  Burr.  944.     1  Tb.  302.     7  Mod.  231.     2  Wils.  173. 
(*)  Bac.  Abr.  Abatement,  &c.  B.  Pleas,  &c.  I.  6. 


324  OF  THE  GENERAL  ISSUE,  &c. 

CHAP,    tial  and  formal  defects  with  equal  rigor,  a  negative 

vi.       pregnant  is  ill,  on  general  demurrer.      Statutes  of 

PART  i.  jeofails,  substantially  like   those  last  mentioned,  or 

~  at  least  like  the  former  of  them,  exist  in  many,  and 

probably  in  all,  of  the  United  States. 

^  36.  But  where  the  affirmative,  implied  in  a 
negative  allegation,  is  such  as  would  not  maintain  the 
pleading  on  the  other  side,  it  does  no  harm,  and  af- 
fords no  ground  of  exception.  In  such  a  case,  there- 
fore, the  negative  allegation  is  not  called  a  negative 
pregnant(t).  Hence,  when  in  debt  for  labor  done, 
the  plaintiff  alleged  that  the  defendant  retained  him 
in  husbandry,  and  the  defendant  pleaded  that  he  did 
not  retain  the  plaintiff  in  husbandry;  the  plea,  though 
it  implied  an  affirmative,  as  tacitly  admitting  a  re- 
tainer of  a  different  kind,  was  held  good  :  Since  proof 
of  any  other  retainer,  than  in  husbandry,  would  not 
maintain  the  count ;  as  it  would  be  a  variance.  So 
also,  if  the  defendant  pleads  title  to  the  freehold,  under 
a  devise  from  J.  S.  ;  alleging  that  J.  S.  died  seised 
in  fee-simple,  and  the  plaintiff  replies  that  J.  S.  did 
not  die  seised  in  fee-simple ;  the  replication,  though 
open  to  the  implication  that  he  died  seised  in  tail, 
or  of  the  largest  estate  less  than  a  fee-simple,  would, 
doubtless,  not  be  faulty  by  reason  of  this  implication : 
Because  proof  of  any  other  estate  in  the  testator,  than 
a  fee-simple,  would  not  support  the  defendant's  plea 
of  title  under  the  devise. 

(<)  Com.  Dig.  Pleader,  R.  6.     Lawes'  PI.  114. 


OF  THE  GENERAL  ISSUE,  &c.  325 

^  37.  The   same  principles  are  applicable  to  af-    CHAP. 
Jirmatives  pregnant.     The  following  may  be  taken       vr. 
as  an  example  of  such  an  allegation  :  If  to  an  action  PART  i. 

of  assumpsit,  which  is  barred  by  the  statute  of  limi- 

.      •  i      i  c    j          11      i       i      T  i  Affirmativc 

tations  m  six  years,  the  defendant  pleads,  that  he  did  pregnant. 

not  undertake,  &c.  within  ten  years,  a  replication 
that  he  did  undertake,  &c.  '  within  ten  years',  would 
be  an  affirmative  pregnant(u)  :  Since  it  would  im- 
pliedly  admit  that  the  defendant  had  not  promised 
within  six  years.  And  as  no  proper  issue  could  be 
tendered  upon  such  a  plea,  the  plaintiff  should,  for 
that  reason,  demur  to  it. 

§  38.  The  general  issue,  as  already  mentioned, 
(ante,  ^  8),  covers  the  whole  declaration,  and  thus 
enables  the  defendant  to  contest  all  the  plaintiff's 
material  allegations(V). 

In  some  cases,  however,  even  according    to    the  what  de- 
ancient    and    most   rigorous  principles  of  pleading,  admissible 

.       .  i        j      i  i  "nder  the 

the  general    issue  may  properly    be  pleaded,  when  general 

r-      i  /*  11  i     •  i  i  •  •  lssue- 

none  of  the  jacts  alleged  in  the  declaration  are  in- 
tended to  be  actually  denied  under  it.  Such  is  the 
case,  where  the  action  is  founded  on  a  bond,  or 
other  specialty,  which  is  void  at  common  law, 
through  an  absolute  incapacity  in  the  obligor.  Thus, 
if  an  action  is  brought  on  a  bond,  or  other  deed, 
executed  by  a  feme  covert ;  she  may  plead  non  est 
factum ;  and  proof  of  her  coverture  will  support  the 

(«)   2  Ld.  Ray.  1099.     6  East,  387. 

(t>)  Bac.   Abr.  Pleas,  &c.  G.  1.     3  Black.  Com.  305. 

42 


326  OF  THE  GENERAL  ISSUE,  &c. 

CHAP.  plea(i0).  But  the  defence  of  coverture,  in  this 
vi.  case,  is  considered  in  the  law,  as  going  in  denial  of 

PART  i.  the  declaration.  For  her  incapacity  to  bind  herself, 
by  any  contract,  being  absolute  and  total;  she  is 

issue.de-     regarded,  as  being  not  a  moral  agent  in  executing 

der-  the  instrument ;  and  it  is  therefore  not  considered 

as  her  act.  And  according  to  what  appear  to  be  the 
more  reasonable  opinions,  the  same  rule  applies, 
and  for  the  same  reason,  to  the  deed  of  an  idiot  or 
a  lunatic ;  but.  on  this  point,  the  authorities  are  not 
all  agreed (#). 

§  39.  But  if  the  legal  incapacity  of  the  party 
executing  the  specialty,  on  which  the  action  is 
founded,  is  only  partial  or  qualified — as  if  the  suit 
is  on  the  bond  of  an  infant;  he  cannot  give  his  in- 
fancy in  evidence,  under  the  plea  of  non  estfactum ; 
but  must  plead  it  specially '(y).  For  the  legal  inca- 
pacity of  an  infant  not  being  absolute ;  a  bond  exe- 
cuted by  him  is  considered  as  his  act,  though  avoid- 
able by  him ;  and  therefore,  proof  of  his  infancy 
does  not  support  the  plea  that  the  instrument  is  not 
his  act.  The  defence  is  inconsistent  with  the  plea. 

§  40.  The  rule  is  the  same,  in  the  case  of  a 
bond  obtained  by  duress.  For  it  is  the  act  of  the 

(to)  5  Co.  119.  2  Wils.  341.  347.  1  Pow.  on  Cont.  97. 
Gilb.  Ev.  162.  Com.  Dig.  Pleader,  2.  W.  18. 

(x)  2  Vent.  198.  2  Stra.  1104.  1  Ld.  Ray.  315.  2  Salk. 
675.  4  Co.  123.  Wilmot,  155.  Chitt.  on  Cont.  260.  3  Day, 
90.  15  Johns.  R.  503.  5  Pick.  431. 

(y]  3  Burr.  1805.  1  Salk.  279.  Gilb.  Ev.  162-3.  Com. 
Dig.  Pleader,  2  W.  22. 


OF  THE  GENERAL  ISSUE,  &c.  327 

party  making  it,  though  avoidable,  as  in  the  preced-    CHAP. 
ing  case(^).     The  duress  must,  therefore,  be  plead-      vi. 
ed  specially ;  as  the  defence  would   contradict  the  PART  i. 
general  issue.     For  the   latter  plea  denies  the  execu-  "      ~ 

*  Genral  is- 

tion  of  the  bond  :  but  the  defence  of  duress  admits  ;««» de- 

fences  un- 

it.  •  der- 

§  41 .  So  also,  where  a  specialty  is  declared  void 
by  statute,  for  any  cause — as,  for  usury,  gaming, 
or  other  illegal  consideration — the  obligor,  or  maker 
of  the  deed,  cannot  avail  himself  of  the  statute, 
under  the  general  issue  ;  but  must  plead  it  specially, 
i.  e.  he  must  plead  specially  the  facts,  which  bring 
the  case  within  the  statute(a).  For  the  instrument, 
though  it  creates  no  legal  obligation,  is  nevertheless, 
as  in  the  preceding  cases,  his  act ;  and  the  special 
matter  of  the  defence  is  therefore  inconsistent  with 
the  plea  of  non  est  factum.  ) 

§  42.  But  fraud,  in  the  execution  of  a  deed, 
may  be  proved  under  the  plea  of  non  est  factum : 
As,  where  one  is,  by  a  deception  practised  upon  him, 
induced  to  execute  an  instrument,  materially  differ- 
ent from  what  he  believed  it  to  be — ex.  gr.  a  bond, 
instead  of  a  release — or  an  obligation  for  £100,  in- 
stead of  one  for  £10(6).  For  in  such  a  case,  proof 

(z)  2  Black.  Com.  296.  5  Co.  119.  a.  Com.  Dig.  Pleader, 
2  W.  19.  20.  Bull.  N.  P.  172. 

(a)  5  Co.  119.  a.  Hob.  72.  1  Stra.  498.  2  Black.  Rep. 
1108.  Com.  Dig.  Pleader,  2  W.  23.  Gilb.  Ev.  163. 

(6)  2  Black.  Com.  308.  2  Co.  3.  9.  b.  Shep.  Touch.  70-1 . 
4  Cruise's  Dig.  27.  2  T.  R.  765.  3  Ib.  488. 


OF  THE  GENERAL   ISSUE,  &c. 

CHAP,    of  the  fraud  goes  directly  to  support  the  plea  :   Inas- 
vi.       much  as  the  instrument,  thus  obtained,  is  not  in  law 
PART  i.   the  deed  of  the  party  sealing  it. 

§  43.  Thus  also,  the  want  of  complete  delivery — 
as  in  the  case  of  an  escrow,  where  the  condition,  on 
which  it  was  to  be  delivered  oyer,  is  not  complied 
with — loss  of  the  seal — erasure — interpolation,  or 
any  alteration,  in  general,  after  the  delivery — are, 
respectively,  good  evidence  under  the  plea  of  non 
estfactum  to  an  action  on  a  deed(c).  The  two  first 
of  these  grounds  of  defence  are  founded  on  the  prin- 
ciple, that  without  a  complete  delivery,  or  without  a 
seal,  no  deed  can  exist  in  law  ;  and  consequently  if 
an  instrument,  originally  sealed,  loses  its  seal,  though 
after  delivery,  it  ceases,  ipso  facto,  to"  be  a  deed(Q). 
As  to  the  other  grounds  of  defence  last  mentioned,  it 
may  be  observed,  that  where  a  deed,  originally  valid, 
is  altered  after  its  delivery,  it  is  no  longer  the  same 
instrument,  which  the  maker  executed. 

^  44.  According  to  the  strict,  original  principles 
of  tlie  common  law,  no  defences  would  appear  to  be 
admissible,  in  any  case,  under  the  general  issue,  ex- 
cept such  as  go  in  denial  of  the  truth  of  the  declara- 
tion :  And  therefore  all  special  matters  of  defence, 

(c)  5  Co.  23.  a.  11  Ib.  27.  a.  b.  28.  b.  Doct.  PI.  259.  262. 
2  Show.  28-9.  Gilb.  Ev.  109. 

(6)  Where  the  seal  is  lost  or  destroyed,  otherwise  than  by  the 
act  of  the  party,  claiming  under  it,  he  may  be  relieved  against  the 
accident,  in  equity. 


OF  THE  GENERAL  ISSUE,  &c.  329 

which  admit,  but  go  in  avoidance  of,  the  declaration,     CHAP. 
would  seem  to  require  special  pleas  in  bar,  as  being      vi. 
inconsistent  with  the  general  issue.  PART  i. 

General 

&  45.  In  the  original  common-law  actions  of  debt  issue, 

defences 

on  specialty — covenant  broken — account — detinue —  ™A<?- 

•f  In  the 

trespass — and  replevin,  the  above  principle  has  gene-  original 

common 

rally  been  observed  ;  arid  therefore  in  these  actions,  law  actions. 
matters  of  avoidance  have  in  general  been,  as  they 
still  are,  inadmissible  defences,  under  the  general 
issue,  except  in  so  far  as  the  principle,  excluding  them 
under  that  issue,  has  been  relaxed  by  statute  provi- 
sions, or  rules  of  court.  Hence  in  these  actions,  any 
defence,  which  does  not  imply  a  denial  of  the  material 
facts,  or  of  what  are  alleged  as  such,  in  the  declara- 
tion, must  be  specially  pleaded. 

^  46.  But  in  actions  of  .  trespass  on  the  case,  in  trespass 
which,  as  having  originated  in  the  equity  of  the 
statute  of  Westm.  2,  (13  Edw.  1)  are  regarded  as 
equitable  actions,  a  more  liberal,  or  rather  a  more 
lax  mode  of  pleading,  has,  with  some  exceptions, 
been  allowed(^).  Hence,  in  this  comprehensive 
class  of  actions,  whether  arising  ex  contractu  or  ex 
delicto,  many  defences,  which  go  merely  in  avoidance 
of  the  declaration,  have  been  admitted  under  the 
general  issue. 

^  47.     In  an  action  of  assumpsit  especially,  this  i?a»swmp- 
is  eminently  the  case.     For  in  this  action,  not  only 

(d)  3  Burr.  1353.     Bac.   Abr.  Pleas,  &c.  G.   2.  Yclv.  174.  b. 
(n.  I-) 


330  OF  THE  GENERAL  ISSUE,  &c. 

CHAP.    sucn  defences  as  deny  the  allegations  in  the  declara- 

vi.      tion  —  but    almost   all   matters  of    avoidance  —  such 

PART  i.  as  coverture  —  infancy  —  usury,  or   other  illegality  — 

~~~~~~  ""  duress  —  payment  —  release  —  a  specialtii  given  for  the 

General  ,  . 

—  a  Ju^§men^  rendered  for  either  party,  in  a  for- 
nier  action  for  the  same  cause  —  an  award  of  arbitra- 
tors, deciding  the  right  in  question  —  and  accord  and 
satisfaction(l),  are  respectively  good  defences,  under 
the  plea  of  non  assumpsit(e). 

§  48.  This  practice  appears  to  be  a  very  wide 
departure  from  the  general  principle  abovementioned, 
except  where  the  action  is  founded  upon  an  implied 
promise  ;  in  which  case,  it  may,  in  theory  at  least, 
be  reconciled  with  that  principle,  by  adverting  to 
the  peculiar  nature  of  the  action  of  indebitatus  as- 
sumpsit.  For  in  that  action,  as  the  promise,  laid  in 
the  declaration,  is  a  mere  inference  or  conclusion  of 
law,  from  the  debt  or  legal  liability,  alleged  as  its 
consideration,  (which  inference  the  law  continually 

(e)  Bac.  Abr.  Pleas,  &c.  G.  2.  2  Burr.  1010.  3  Ib.  1353. 
1  Stra.  498.  Ld.  Ray.  566.  787.  Doug.  108.  2  H.  Black. 
143.  5  East,  230.  4  Esp.  Rep.  181.  Com.  Dig.  Accord.  12 
Mod.  377.  Chitt.  on  Bills,  197-8.  1  Chitt.  PI.  472-3. 

(7)  It  has  been  questioned  by  some,  whether  accord  and  satis- 
faction can  be  given  in  evidence,  under  non  assumpsit.  But  the 
same  reason,  which  justifies  the  admission  of  the  other  enumerated 
defences,  under  the  same  plea,  most  clearly  extends  to  this  :  Since 
it  goes  in  extinguishment  of  the  debt.  And  the  weight  of  authori- 
ty is  on  the  same  side  of  the  question.  (12  Mod.  377.  1  Ld. 
Ray.  566.  Com.  Dig.  Accord.  Bac.  Abr.  Accord.  5  East,  230. 
4  Esp.  Rep.  181.) 


OF  THE  GENERAL  ISSUE,  &c.  331 

raises,  while  the  legal  liability  remains,  and  no  long-    CHAP. 
er)  ;  it  results,  that  whatever  disproves  a  subsisting      vi. 
debt,  or  legal  liability  at  the  time  of  plea  pleaded,  PART  i. 
disproves  the  alleged  promise.     And  the  existence  ~~~ 
of  the  debt.  &c.  at  the  time  of  pleading,  may  be  dis-  i*»ue, 

J  _  defences 

proved,  by  showing,  either  that  it  never  existed,  or  under. 
that  it  has  been,  by  any  means,  extinguished  before 
that  time.  As  therefore,  each  of  the  several  defen- 
ces, enumerated  in  the  last  section,  goes  to  the 
proof  of  the  one  or  the  other  of  these  two  points  ; 
it  follows,  that  they  all,  in  their  legal  effect,  go  in 
denial  of  the  alleged  promise,  and  consequently  in 
support  of  the  plea  of  non  assumpsit. 

^  49.  From  the  preceding  remarks  it  will  also 
be  apparent,  that  in  the  action  of  indebitatus  assump- 
sit, the  plea  of  non  assumpsit,  though  expressed  in 
the  past  tense,  does  not  mean  that  the  defendant 
did  not  actually  promise,  as  stated  in  the  declaration, 
(for  the  action  is  not  founded  on  a  promise  in  fact) ; 
but  that  he  is,  at  the  time  of  pleading,  not  indebted 
to  the  plaintiff,  or  not  in  law  liable  to  the  demand, 
made  in  the  declaration. 

§  50.  It  is  quite  apparent,  however,  that  the 
reasons,  just  assigned  for  allowing  such  a  latitude 
to  the  general  issue,  in  indebitatus  assumpsit,  and 
which  are  founded  on  the  peculiarities  of  that  action, 
are  inapplicable  to  the  action  of  assumpsit  on  express 
promises  ;  and  consequently,  that  the  special  mat- 
ters of  defence,  before  mentioned,  or  at  least  such 
of  them  as  accrue  subsequently  to  the  making  of  the 


General 


332  OF  THE  GENERAL  ISSUE,  &c. 

CHAP,    promise,  are,  on  principle,  inadmissible,  under  non 
vi.       assumpsit,  in  the  latter  action.     And  so  the  rule  ap- 
PART  i.    pears  to  have  been,  formerly,  in  practice(/).     But 
through  inadvertence,  in  not  attending   to  the  dis- 
tmcti°n  between  the  two  forms  of  assumpsit,  or  from 
some  other  cause,  the  rule  has  been  now  long  estab- 

o 

lished,  that  all  the  defences,  which  are  admissible 
under  the  general  issue,  in  the  one  form  of  the  ac- 
tion, are  so  in  the  other. 

^51.  But  even  in  assumpsit,  the  statute  of  lim- 
itations —  tender  —  set-off-  —  and  bankruptcy,  are,  on 
common-law  principles,  inadmissible  defences,  under 
the  general  issue,  and  must  therefore  be  pleaded 
specially  (g).  For  these  defences,  respectively,  ad- 
mit the  debt,  or  gist  of  the  action,  and  go  in  denial 
of  the  remedy  only. 

^  52.  In  indebitatus  assumpsit,  (and  now  in  all 
actions  of  assumpsit),  the  plea  of  non  assumpsit,  as 
before  explained,  appears  to  have  the  same  com- 
prehensive legal  effect,  as  that  of  nil  debet  in  debt 
on  simple  contract  ;  and  therefore  the  same  de- 
fences appear,  on  principle,  to  be  admissible,  under 
both  these  issues  ;  as  in  most  instances  they  are(^). 

^  53.  It  is  held,  however,  that  the  statute  of 
limitations  though  inadmissible  under  non  assumpsit, 

(/)  i  Mod.  210. 

(g)  1  Ld.  Ray.  153.  Tidd,  375.  1  Saund.  283.  (n.  2.)  Chitt. 
on  Bills,  198. 

J[fc)  Cro.  Eliz.  140.  222.  5  Mod.  18.  1  Salk.  284.  2  Phil.  Ev. 
94.  1  Saund.  283.  (n.  2.) 


OF  THE  GENERAL  ISSUE,  &c.  333 

is  a  good  defence,  in  debt  on  simple  contract,  under    CHAP. 
the  plea  of  nil  debet(i) ;  because   the  plea  is  in  the       vi. 
present  tense.     But  so,  in  effect,  is  the  plea  of  non  PART  i. 
assumpsit.     And  if  the   reason   of  the   rule,  which  ' 

G  eneral 

excludes  this  defence  under  the  latter  plea,  is  a  sound  |fs«ei 

defences 

one  ;  the  same  rule,  it  would  seem,  ought  to  be  ap-  under- 
plied  to  the  former(&). 

Advantage  may  also  be  taken  of  the  statute  of 
frauds  and  perjuries,  under  the  plea  of  non  assump- 
sit, by  excepting  to  all  parol  evidence  offered  in  sup- 
port of  the  declaration (/). 

&  54.  In    those  actions  on  the  case   also,  which  in^e,  ex 

dehcto. 

arise  ex  delicto,  matters  of  mere  avoidance  have,  to  a 
very  considerable  extent,  been  admitted  in  evidence, 
under  the  general  issue.  It  would  be  difficult,  how- 
ever, to  discover  any  precise  principle,  by  which  this 
practice  may  be  justified,  or  any  definite  general  rule, 
by  which  to  limit  its  precise  extent.  Indeed,  the 
practice  appears  to  be,  in  a  great  measure,  an  arbitra- 
ry departure  from  the  original  principles  of  the  law, 
and  as  such,  to  rest  on  authority,  rather  than  any 
known  legal  reason. 

§  55.  According  to  this  practice,  however, 
(whatever  may  have  been  its  origin),  the  rule  has 
now  become  general,  that  in  actions  on  the  case,  ex 

(t)  1  Saund.  283.  (n.  2.)  1  Ld.  Ray.  153.  566.  1  Salk.  278. 
Com.  Dig.  Pleader,  2  W.  16. 

(fc)  Vid.  1  Chitt.  PI.  476.   1  Saund.  283.  (n.  2.)   2  Mass.  R.  87. 
(/)  1  Bro.  C.  C.  93.    1  Chitt.  PI.  470. 
43 


334  OF  THE  GENERAL  ISSUE,  &c. 

CHAP,    delicto,  the  defendant  may  prove,  under  the  plea  of 

vi.       not  guilty,  almost  every  special  matter  of  defence, 

PART  i.  which  conduces  to  show,  that  at  the  time  of  pleading, 

he  is  not  liable  to  the  plaintiff's  demandfw).     Ex. 

General 

defo5'         Sr>  a  tocensei  or  any  other  justification^) — a  former 
under.        recovery — release — accord  and  satisfaction,  &c(o). 

§  56.  These  special  defences,  however,  and  all 
others  which  confess  the  truth  of  the  declaration, 
may  be  specially  pleaded,  instead  of  being  given  in 
evidence,  under  the  general  issue  :  A  rule,  which 
holds  in  assumpsit  also.  For  regularly,  no  plea 
which  admits  the  truth  of  the  declaration  can  be 
said  to  amount  to  the  general  issue ;  though  the  mat- 
ter of  it  might  have  been  given  in  evidence,  under 
that  issue(j?). 

^  57.  In  the  single  case  of  trover,  however,  it 
has  been  held  that  there  is  but  one  good  special 
plea  to  the  action,  viz.  release  :  All  other  such  pleas 
amounting,  it  is  said,  to  the  general  issue(q).  And 
if  we  are  here  to  understand  the  word  '  release,7 
not  as  meaning  exclusively  a  formal,  technical  re- 
lease or  acquittance,  but  as  including  whatever  ex- 
tinguishes or  discharges  a  right  of  action  once  exist- 

(m)  3  Burr.  1353.  1  Black.  R.  388.  1  Wils.  45.  1  Chitt,  PJ. 
486-7. 

(n)  8  East,  308.  2  Mod.  6.  7. 

(o)  2  Mod.  276.  3  Ib.  166.  Com.  R.  273.  1  Wils.  44.  175. 
2  Phill.  Ev.  108.  Bac.  Abr.  Pleas,  &c.  I.  1.  1  Keb.  305. 

(p)  1  Ld.  Ray.  88-9.  1  Salk.  394.  5  Mod.  18.  Carlh.  356. 
Lawes'  PI.  112.  Tidd.  591.  599. 

(g)  Bac.  Abr.  Pleas,  &c.  I.  1.  1  Keb.  305.  Telv.  174.  a.  (n. 
1.)  Reg.  PI.  268. 


OF  THE  GENERAL  ISSUE,  &c.  335 

ing — as  accord  and  satisfaction,  a  former  recovery,    CHAP. 
or  a  former  bar,  an  award  of  arbitrators,  &c.  (and       vi. 
in  this  sense  the  term  appears  to  have  been  used)  ;  PART  i. 
the  position  will  appear  to  be  not  destitute  of  a  foun-  Gencral 
dation  in  principle.     For  as  the  conversion,  which  is  i)ssvie. 

defences 

the  gist  of  the  action  in  trover,  is,  ex  vi  termini,  a  under- 
tortious  act,  which  cannot  in  law  be  justified  or  ex- 
cused ;  it  is  manifest  that  any  plea  alleging  matter 
of  justification  or  excuse,  (as  a  license  from  the  plain- 
tiff— an  authority  derived  from  the  law,  &c.)  is 
equivalent  to  the  plea  of  not  guilty ;  since  it  must 
involve  a  denial  of  the  conversion. 

^  58.  In  slander,  the  defendant  is  allowed  to 
prove,  under  the  general  issue,  that  the  words  were 
spoken  by  him  as  counsel  in  a  cause  ;  or  in  honest 
confidence,  and  for  a  justifiable  reason— (as  in  fairly 
giving  the  character  of  a  servant) ;  or  to  show  any 
other  fact,  in  general,  which  conduced  to  prove  that 
the  words  were  not  uttered  maliciously  (r) :  Malice 
being,  in  this  action,  of  the  gist  of  the  action (8). 

(r)  2  Selw.  N.  P.  929.  1066.  1  Saund.  131.  (n.  1.)  Cro.  Jac. 
90.  1  B.  &  A.  232.  1  M.  &  S.  644.  15  Mass.R.  50.  57.  4  Ib. 
1.  2  Pick.  310.  Bull.  N.  P.  8.  1  T.  R.  110.  1  Bos.  &  P.  525. 
1  Caiupb.  267.  3  Johns.  R.  180. 


(8)  Yet  the  defendant,  in  slander,  is  not  allowed  to  prove  the 
truth  of  the  words,  under  the  general  issue,  (2  Stra.  1200.  Bull. 
N.  P.  9.  Willes,  20.  1  Saund.  130.  (n.  1.)  1  T.  R.  748.  1 
Bos.  &,  P.  525.  2  Ib.  225.  (n.  a  )  Com.  Dig.  Pleader,  2  L.  2)  : 
Though  the  truth  of  the  words  plainly  conduces  to  rebut  the  legal 
presumption  of  malice. 


336  OF  THE  GENERAL  ISSUE,  &c. 

All    these   and    similar   defences   may   however   be 
pleaded  specially(s). 

But  it  seems  impossible  to  reconcile  all  the  differ- 
ent rules  admitting  and  excluding  special  matters  of 
defence,  under  the  general  issue,  in  actions  on  the 
case,  either  with  the  strict  principles  of  the  common 
law,  or  with  each  other. 

§  59.  The  universal  principle  which,  by  the 
common  law,  renders  any  given  evidence  admissible 
under  any  given  issue,  is  its  relevancy  to  the  issue 
— i.  e.  its  conduciveness,  or  tendency,  to  prove  the 
affirmative  or  negative  of  the  issue.  And  according 
to  this  principle,  no  evidence  is  admissible,  on  the 
part  of  the  defendant,  under  the  general  issue,  except 
such  as  conduces  to  disprove  the  declaration.  But 
in  actions  on  the  case,  as  has  been  shown,  many 
deviations  from  this  simple  principle  have  been 
sanctioned  by  courts  of  justice  ;  and  various  similar 
deviations  from  the  same  principle  have  been  in- 
troduced, and  extended  to  other  actions,  both  in 
England(0  and  in  the  United  States,  by  legislative 
enactments,  and  rules  of  court,  for  the  purpose  of 
enlarging  the  office  of  the  general  issue,  and  of 
allowing  the  defendant  to  give  in  evidence,  under  it, 
many  special  matters  of  defence,  which,  as  being 
inconsistent  with  it,  are  by  the  strict  original  rules  of 
the  common  law,  required  to  be  pleaded  specially. 

(s)   1  Saund.  130-1.  (n.  1.) 
(/)  Com.  Dig.  Pleader,  E.  13, 


OF  THE  GENERAL  ISSUE,  &c. 

§  60.     Instead  of  pleading  the  general  issue,  the    CHAP. 
defendant   may,  in   some   cases,  effectually  answer       vi. 
the  declaration  by  a  special  issue — i.  e.  by  directly  PART  i. 
denying  some  one  material  and  traversable  allega-  

"•iii  •  i  IT  i  Special 

tion  in  the  declaration,  and  concluding  to  the  coun-  issue, 
try(w). 

^61.  A  special  issue,  however,  is  not  adapted  to 
all  cases.  Its  proper  use  is  limited  to  those  cases,  in 
which  the  declaration  alleges  at  least  two  distinct 
substantive  facts,  both  of  which  are  essential  to  a 
right  of  action.  In  such  a  case,  a  denial  of  one  of 
those  facts — though  it  does  not  put  the  whole 
declaration  in  issue — is  nevertheless  as  complete 
an  answer  in  law  to  the  whole  right  of  action,  as 
the  general  issue  itself  would  be.  For  where  two 
or  more  facts  are  necessary  to  constitute  a  right  of 
recovery,  it  is  self-evident,  that  a  denial  of  any  one 
of  them  is  a  denial  of  the  entire  right  of  recovery. 

§  62.  Thus,  in  assumpsit  on  a  special  agreement, 
where  the  right  of  action  depends  upon  a  condition 
precedent,  and  where  the  declaration  specially  al- 
leges, as  it  must,  performance  of  the  condition — 
the  defendant  may,  instead  of  pleading  the  general 
issue,  deny  the  alleged  performance  of  the  condition 
only,  and  put  himself  upon  the  country(V).  If,  f<pr 
example,  the  plaintiff's  right  of  action  depends  upon 

(u)  Yelv.  195.  Lawes'  PI.  112.  135.  Gilb.  H.  C.  P.  61. 
Com.  Dig.  Pleader,  R.  2.  Bac.  Abr.  Picas,  &c.  G.  3.  H.  1. 

(»)  Doct.  PI.  203.  Gilb.  II.  C.  P.  60-1.  139.  148.  1  Chitt. 
PI.  467. 


Special 
issue. 


OF  THE  GENERAL  ISSUE,  &c. 

CHAP,    previous  notice  of  some   fact,  to  the   defendant,  or 
vi.      upon  a  special  request ;  the  defendant   may  take  a 
PART  i.  special  issue  upon   the  allegation  of  such  notice,  in 
the  one  case,  or  such  request,  in  the  other.     This 
mode  of  pleading  in  assumpsit  is  now,  however,  in  a 
great   measure     obsolete :    Since    every   allegation, 
which  might   be  denied  by  a  special  issue,  may,  in 
that  action,  be  contested  under  the  general  issue. 

^  63.  But  in  some  cases,  special  issues  are  still 
not  only  proper,  but  necessary — as  where,  in 
covenant  broken,  or  other  action  on  a  specialty,  per- 
formance of  a  condition  precedent  is  alleged  in  the 
declaration.  For  in  such  a  case,  the  defendant  can- 
not "contest  the  alleged  performance  of  the  condi- 
tion, under  the  plea  of  non  est  factum.  So  also,  in 
an  action  of  covenant  broken  against  a  lessee,  for 
not  repairing  a  building,  and  in  which  the  declara- 
tion alleges  that  the  building  was  left  ruinous  and 
out  of  repair,  the  defendant  may  take  issue  upon  this 
allegation,  by  averring  that  the  building  was  not 
ruinous  or  out  of  repair,  and  conclude  to  the  coun- 
try(i#)(9).  For  this  defence  would  not  maintain  the 
plea  of  non  est  factum. 

(w)  2  Chitt.  PL  501. 

(9)  This  last  plea  supposes  no  repairs  to  have  been  necessary  : 
For  if  the  defendant  has  actually  made  the  repairs  required  by  his 
covenant  ;  his  answer  to  the  declaration  should  be  a  special  plea, 
averring  that  he  did  repair,  &c.  and  concluding  with  a  verification, 
(2  Chitt.  PI.  501.  n.  y.)  For  in  this  case,  the  defence  would  be 
performance,  which  is  matter  of  avoidance. 


OF  THE  GENERAL  ISSUE,  &c.  339 

^  64.  In  actions  founded  on   deeds,  the  defend-    CHAP. 
ant  may,  instead  of  pleading  non  est  factum  in  com-      vi. 
mon  form,  allege  any  special  matter,  which  admits  PART  i. 
the  execution  of  the   writing:  in  question,  but  which 

°.  .  .  Special  non 

shows,  nevertheless,  that  it  is  not  in  law  his  deed ;  cst  factum. 
and  may  conclude  with  non  est  factum  :  As  that  the 
writing  was  delivered  to  J.  S.  as  an  escrow,  to  be 
delivered  over,  on  a  certain  condition,  which  has 
not  been  complied  with,  '  and  so  is  not  his  act' : 
Or,  that  the  writing  has  been  altered  by  the  plaintiff, 
since  its  delivery,  '  and  so  is  not  his  act' :  Or,  that 
the  defendant  was,  at  the  time  of  making  the  writ- 
ing, <\feme  covert;  '  and  so  it  is  not  her  act'(V). 

This  anomalous  plea  is  called,  indifferently,  '  a 
special  non  est  factum' ',  or  '  the  general  issue,  with  an 
issinf — the  latter  denomination  being  derived  from 
the  Norman  word,  '  issint'  (so),  in  the  language  of 
the  plea(y). 

§  65.  In  a  plea  of  this  kind,  the  latter  part,  (the 
non  est  factum),  is  merely  an  inference  from  the 
special  matter  which  precedes  it :  The  word  '  so' 
being  used  in  an  illative  sense,  and  conveying  the 
same  meaning  as  the  word,  '  therefore'.  The  spe- 
cial matter  then  merely  shows  how  and  why  the 
instrument  is  riot  the  defendant's  act ;  and  on  the 
trial  of  the  issue,  the  evidence  on  both  sides  is  con- 

(x)  Bac.  Abr.  Pleas,  &c.  H.  3. 1.  2.  Gilb.  Ev.  164-6.  Sav.  71. 
72.  Bridgm.  100.   1  Vent.  9.  210.   1  Salk.  274.   4  B.  &  A.  441. 


340  OF  THE  GENERAL  ISSUE,  &c. 

CHAP,    fined  to  the  special  matter  alleged.      For  under   a 
vi.      plea  of  this  kind,  the  special  facts  so  alleged,  and  no 
PART  i.  others,  are  put  in  issue. 

Special  non 

estfactum.  ^  gg.  It  is  manifest,  therefore,  that  if  the  facts, 
specially  stated  in  this  plea,  are  not  such  as  to  show 
that  the  instrument  is,  in  law,  not  the  defendant's 
deed,  or,  (which  is  the  same  thing),  not  such  as 
would,  in  evidence,  maintain  the  general  issue,  when 
pleaded  in  its  general  and  usual  form ;  the  plea  is  ill, 
and  demurrable(2r).  For  as  the  facts,  specially 
alleged,  present  all  the  grounds  of  the  defence  speci- 
fically, upon  the  record ;  the  question  of  their  suf- 
ficiency in  law  arises  upon  the  face  of  the  pleadings, 
as  upon  a  plea  merely  special.  If  therefore  the  de- 
fendant pleads,  that  he  was  compelled  by  duress  to 
execute  the  writing — or  that,  at  the  time  of  execut- 
ing it,  he  was  an  infant — and  concludes  with  the 
general  issue ;  the  plea  is  ill,  and  demurrable.  For, 
as  has  been  seen,  (ante,  ^§  39.  40),  these  defences, 
like  all  others  which  render  the  instrument  merely 
voidable,  do  not  maintain  that  issue(a). 

^  67.  The  effect  of  a  demurrer  to  a  special  non  est 

factum  is  strictly  analogous  to  that  of  a  demurrer  to 

evidence.     The  question  of  law,  raised  by  the  latter, 

is,  whether  the  facts  shown  in  evidence  are  sufficient 

in  law  to  maintain  the  issue  in  fact,  in  favor  of  the 

(z)  Gilb.  Ev.  164-5.   Vid.  4  Esp.  Rep.  255.  6  Mod.  217. 
(a)  5   Co.   119.     Plowd.  66.     Gilb.  Ev.   162.     Com.  Dig. 
Pleader,  E.  30. 


OF  THE  CENE1UL  ISSl  E,  &r. 

party    exhibiting   the  evidence(6).     And    the   ques-,  CIIAP. 
tion  of  law,  raised  by   a  demurrer  to  a  special  non      vi. 
estfaclum,  is,  whether  the  facts,  specially  alleged  in  PART  i. 
the  plea,  are  sufficient  in  law  to  maintain  the  general  ~ : 

Special  non 

issue,   (with  which   it   concludes),  in    favor  of   the 
party  pleading  them. 

^  68.  The  conclusion  of  this  plea  with  the  gen- 
eral issue,  seems  plainly  to  indicate  that  it  ought  to 
be  referred  to  the  jury ;  and  the  better  authority 
appears  to  be,  that  it  must  be  closed  to  the  coun- 
try(c).  But  this  conclusion,  it  may  be  observed, 
does  not  prevent  the  plaintiff  from  demurring  for  the 
legal  insufficiency  of  the  special  matter,  which  pre- 
cedes the  non  estfaclum.  For  though  a  conclusion 
to  the  country,  on  either  side,  puts  an  end  to  the 
pleadings ;  it  does  not  preclude  a  demurrer  by  the 
party,  to  whom  the  issue  is  tendered, 

§  69.  According  to  some  opinions,  however,  a 
special  non  est  factum  may,  and  should,  conclude 
with  a  verification(d).  But  such  a  conclusion  would 
alter  the  essential  character  of  the  plea,  and  convert 
it  into  a  mere  special  plea  amounting  to  the  general  is- 
sue, which  is,  regularly,  inadmissible.  Besides,  it  is 
difficult  to  discover  any  use  or  propriety  in  leaving  the 
plea  open  to  an  answer.  It  cannot  be  necessary,  to 

(b)  Doug.  218.  225.     Bull.  N.  P.  313,     Vid.  ch.  9,  part  2. 

(c)  Plowd.  66.     3  Keb.  26.     Bro.  Ab.  General  Issue,  pi.  26. 
1  Vent.  9.  210.     Bac.  Abr.  Pleas,  £c.  1.  2.   Com.  Dig.  Pleader, 
E.  32.     1  Satk.  274. 

(d)  Gilb.  Ev.  164-5.     Noy,  112. 

44 


OF  THE  GENERAL  ISSUE,  &c. 

CHAP,    tne  end  of  giving  the  plaintiff  an  opportunity  to  take 

vi.      issue  on  the  special  facts  stated  in  the  plea  (for  these 

PART  i.  are  put  in  issue  by  the  plea  itself)  ;  nor  to  enable 

"  him   to   make    a  special   replication ;  for   whatever 

could  be  specially  replied,  may  be  given  in  evidence 

in  disproof  of  the  plea. 


OF    PLEAS    TO    THE    ACTION. 

PART  II. — Of  Special  Pleas  in  Bar. 
special  &  70.  A  special  plea  in  bar,  as  usually  defined, 

pleas  in  bar.   .  .  ,  .  . 

is  one  which  admits  the  truth  of  the  declaration,  but 
alleges  special  matter  in  avoidance  of  it(e).  Of 
this  class  are  such  pleas,  as  that  of  release,  accord 
and  satisfaction,  payment,  tender,  a  justification  of  any 
kind,  the  statute  of  limitations,  or  of  usury,  &c. — 
all  which,  like  many  others,  confess,  but  avoid,  the 
allegations  in  the  declaration. 

§  71.  But  it  is  not  universally  true,  (though 
generally  so),  that  a  special  plea  in  bar  goes,  merely 
and  exclusively,  in  confession  and  avoidance  of  the 
plaintiff's  allegations.  For  in  some  instances,  such 
;a  plea  concludes  with  a  traverse  of  part  of  the 
.declaration^).  It  may  be  added  too,  that  a  spe- 

(e)  Bae.  Abr.  Pleas,  &c.  (Introd.  2.)  Lawes'  PI.  37-8. 115.  129. 
,(/)  Hob.  104,     2  Chitt.  PI.  510.  Bac.  Abr.  Pleas,  &c.  H.  3. 


OF  SPECIAL  PLEAS  IN  BAR. 

cial  plea  in  bar,  alleging  matter  of  estoppel,  neither    CHAP. 
confesses  nor  denies  the  truth  of  the  declaration ;      vi. 
though,  like  other  pleas  in  bar,  it  virtually  denies  PART  n. 
the  right   of  action(g),    by   denying   the    plaintiff's 
right  to  allege  the  facts  stated  in  the  declaration. 
(Vid.  ch.  2,  §  39.) 

§  72.  For  the  purpose  then  of  denning,  more 
precisely,  a  special  plea  in  bar,  it  may  perhaps  be 
sufficient  to  say,  that  it  is  a  plea,  which  alleges 
new  or  special  matter,  in  bar  of  the  action,  and  con- 
cludes with  an  averment(lO).  It  admits,  on  general 
principles  heretofore  explained,  (ch.  3,  ^  67),  the 
truth  of  all  the  plaintiff's  traversable  allegations, 
which  it  does  not  traverse,  and  goes  in  avoidance  of 
what  it  admits  (A), 

^  73.  Special  pleas  in  bar  are  usually  in  affirma- 
tive language  ;  but  not  universally  so.  To  a  nega- 
tive covenant,  for  example,  the  plea,  by  which  the 
defendant  shows  that  he  has  kept  his  covenant,  is 

(g-)  3  Black.   Com.  308.     Willes,  13,     Lawes'  PI.  38.  130< 
140.  161.  170.     3  East,  346. 
(fc)  Bac.  Abr.  Pleas,  &<j.  H.  4.     1  Salk,  91.     1  Wils.  338. 

(10)  The  term,  *  averment',  when  used  as  above,  to  express 
the  manner  of  concluding  any  pleading,  signifies  the  averment, 
'  this  he  is  ready  to  verify' ;  and  in  this  sense  is  synonymous  with 
the  word,  «  verificaion'.  But  in  its  more  general  acceptation,  it 
has  the  same  meaning  as  the  word  '  allegation', 


34,4  OF  SPECIAL  PLEAS  IN  BAR. 

CHAP,    m  tne  negative ;  as  that  he  has  not  done  what  he 
vi.      covenanted  against (i). 

PART  II. 

$5  74.     As  every  special   plea  alleges  new  matter  ; 

Must  con-       .       *  .,'.,,. 

dude  with  a  it  must,  regularly,  conclude  with  a  verification  and  a 

verification.  <•••     j  XT\          T-I  T 

prayer  or  judgment(/c).  lor,  according  to  a  prin- 
ciple heretofore  stated,  (ch.  3,  §§  196.  197),  all 
pleading,  subsequent  to  the  declaration,  and  alleging 
new  matter,  must  be  left  open — in  order  that  the 
adverse  party  may  have  an  opportunity  to  answer 
it,  as  he  pleases. 

^  75.  But  there  is  no  necessity  of  concluding 
any  plea,  merely  negative,  with  a  verification  :  It 
may  conclude  with  a  prayer  of  judgment  only  (I). 
For  a  verification,  being  an  offer  to  prove  the  allega- 
tions to  which  it  refers,  cannot,  in  strictness,  be 
required  of  him  who  pleads  in  the  negative  ;  be- 
cause he,  who  takes  the  negative  in  pleading,  is, 
regularly,  not  bound  to  prove  it :  The  burden  of 
proof,  by  the  general  rule,  being  upon  him  who 
takes  the  affirmative. 

§  76.  When  the  defendant  alleges  distinct  mat- 
ters of  defence  to  different  parts  of  the  declaration, 
or  cause  of  action  (as  where  in  an  action  to  recover 

(*)  3  Black.  Com.  309.  Co.  Litt.  303.  b.  Bac.  Abr.  Pleas, 
&c.  I.  3. 

(k)  3  Black.  Com.  309.  310.  Lawes'  PJ.  145.  159.  1  Saund. 
103.  (n.  1.)  Carth.  337.  2  Wils.  66.  2  T.  R.  576.  2  Burr. 
772.  Cowp.  575. 

(/)  Co.  Litt.  303.  a.     Willes,  6.  7.     Lawes'  PI.  145. 


OF  SPECIAL  PLEAS  IN  BAR.  345 

a  debt,  he  pleads  payment  of  part,  and  a  tender  of  CHAP. 

the   residue),  he  may  either  conclude   each  distinct  vi. 

matter  of  defence,   with  a  separate  verification,   or  PART  n. 
all  of  them  together,  with  a  single  general  one(m). 

§  77.  It  is  said  to  be  a  universal  rule,  that  every 
good  defence  to  the  action,  which  cannot  be  plead- 
ed specially,  may  be  given  in  evidence  under  the 
general  issue(n).  It  must  follow,  therefore,  on  the 
other  hand,  that  every  such  defence,  which  cannot  be 
given  in  evidence  under  the  general  issue,  may  be 
specially  pleaded.  Otherwise  the  defence,  though 
admitted  to  be  sufficient  in  law,  would  necessarily 
be  lost  to  the  defendant. 

§  78.  But  a  special  plea,  amounting  to  the  gen-  Amounting 
eral  issue — i.  e.  a  plea  alleging  new  matter,  which  general 
is  in  effect  a  denial  of  the  truth  of  the  declaration —  ^«mi 
is,   in  general,   improper   and    inadmissible(o).       If 
therefore  in  trespass,  the  defendant  pleads  specially 
an   alibi — or  title  in   himself  or  a  stranger,  to   the 
property   in  question — or   in    trover,    that   he   took 
the  goods  as  a  distress  for  rent,  &c.  the  plea  is  im- 
proper :  Because  in  each  of  these  cases,  the  matter 
pleaded  is  virtually  a  denial  of  the  truth  of  the  de- 
claration.    The  proper  plea,    therefore,   in  each  of 
them,  would  have  been  the  general  issue(j?).     So 

(MI)  1  Saund.  336.  b.  339.  (n.  8.)  1  Salk.  298.  312.  Carth.  43. 

(»)  Lawes'  PI.  111. 

(o)  10  Co.  95.  a.  Com.  Dig.  Pleader,  E.  14.  3  Black.  Com. 
309.  Bac.  Abr.  Pleas,  &c.  G.  3.  Co.  Litt.  303.  b.  Hob.  127.  1 
Salk.  394.  Cro.  Car.  157. 

(/>)  lid.  Yelv.  174.  b.  (n.  1.) 


OF  SPECIAL  PLEAS  IN  BAR. 

CHAP.    a^s°)  where  in  trover,   the    defendant  pleaded  title 

vi.       in  himself,  to  the  goods,  the  plea  was  held  ill,   as 

PART  ii.  amounting  to  a  denial  of  the  conversion,  which  is  the 

gist  of  the  action,  and  therefore  as  tantamount  to 

the  general  issue (9-). 

§  79.  The  ground  of  objection  to  a  plea  of  this 
kind  is,  that  it  tends  to  unnecessary  prolixity  in  the 
pleadings,  and  refers  to  the  court,  instead  of  the 
jury,  matter  of  mere  fact — matter  which  goes  in 
denial  of  the  declaration,  and  not  in  avoidance  of 
it(r).  The  fault  in  the  plea,  however,  is  not  in  its 
substance — (for  whatever  denies  the  declaration  is 
substantially  a  sufficient  answer  to  it)  ;  but  in  its 
form  only (5). 

When  %  80.  But  the  above  general   rule  is  subject   to 

allowable.     ^nree  exceptions,  or  qualifications  : — 

1.  A  special  plea,  amounting  to  the  general  issue, 
is  good,  if  it  contains  special  matter  of  justifica- 
tion^) :  In  other  words,  an  entire  special  plea,  an- 
swering the  whole  declaration,  and  alleging  matter 
of  justification,  is  good ;  although,  as  to  part  of  the 
declaration,  it  amounts  to  the  general  issue.  For 

(q)  Cro.  Car.  157. 

(r)  Hob.  127.  Bac.  Abr.  Pleas,  &c.  G.  3. 

(»)  10  Co.  95.  a.  Bac.  Abr.  Pleas,  &c.  G.  3.  Com.  Dig. 
Pleader,  E.  14.  Hob.  127.  &  note(2)by  Williams.  1  Freem.  39- 

(0  3  Lev.  40.  Bac.  Abr.  Pleas,  &c.  G.  3.  Trespass,  I.  3.  (2) 
Cro.  Eliz.  268.  Esp.  Dig.  318. 


OF  SPECIAL  PLEAS  IN  BAR.  347 

matter  of  justification  is  matter  of  laiv(Il),  which  CHAP. 
ought  to  be  referred,  by  the  plea,  to  the  court.  And  vi. 
therefore  such  matter,  when  it  goes  in  avoidance  of  PART  n. 
a  material  part  of  the  declaration,  is  allowed  to  be 
pleaded  specially  ;  though,  as  to  some  other  part  of 
the  declaration,  it  may  amount  to  a  mere  denial. 
For,  as  the  matter  of  one  entire  plea  cannot  be  sepa- 
rated, by  a  reference  of  one  part  of  it  to  the  jury, 
and  of  the  other  to  the  court,  and  as  it  would  be  at 
least  as  improper  to  refer  matter  of  law  to  the  jury, 
as  matter  of  fact  to  the  court ;  the  defendant  is  al- 
lowed to  refer  the  whole  to  the  latter.  Thus,  in 
trespass  for  entering  the  plaintiff's  close,  treading 
down  his  grass,  and  driving  his  beasts  to  places  un- 
known, so  that  they  could  not  be  replevied,  the  de- 
fendant pleaded  that  the  locus  in  quo  was  his  own 
waste,  (in  which,  as  appeared  in  another  part  of  the 
pleading,  the  plaintiff  had  a  right  of  common) ;  and 
that  the  beasts  of  the  plaintiff  were  there,  inter- 
mixed with  the  beasts  of  strangers,  which  had  no 
right  there  ;  and  that  because  the  latter  could  not 
there  be  separated  from  the  plain  tiff's  beasts,  the 
defendant  drove  them  all  to  a  pound  in  the  waste, 
to  separate  them,  and  having  separated  them,  left 
the  plaintiff's  beasts  in  the  waste  :  On  demurrer  to 
this  plea,  as  amounting  to  the  general  issue,  the 

(11)  In  this,  as  in  other  rules,  pointing  out  what  should,  and 
what  should  not,  be  pleaded  specially,  '  matter  of  law"1  is  synony- 
mous with  '  matter  of  avoidance,'  as  distinguished  from  matter  of 
denial.  Hence,  whatever  amounts  to  a  denial  of  the  adverse 
party's  allegations,  is  termed  '  matter  of  fact,'  whatever  confesses 
and  avoids  them,  'matter  of  law.' 


348  OF  SPECIAL  PLEAS  IN  BAR. 

CHAP.    COUI>t   held,    that   though    the   allegation,   that    the 
vr      place  where  was  the  defendants  waste  was  a  mere 
PART  ii.  denial  of  his  alleged  entry  into  the  plaintiffs  close  ; 
yet  as  it   was  a   necessary  part  of  the  defendant's 
justification,  in  driving  the  plaintiffs  beasts  to  the 
pound,  (which  was   part   of  the    alleged   trespass)  ; 
the  plea,  being  entire,  was  good(w)(12). 

^81.  2.  The  general  rule  under  consideration 
admits  of  another  exception,  (or  rather  an  evasion), 
in  trespass  qu.  cl.  Jr.  and  assise — in  which,  though  a 
simple  plea  of  a  possessory  title  in  the  defendant  is 
ill,  as  amounting  to  the  general  issue  ;  he  may, 
nevertheless,  plead  that  defence,  if  the  plea  gives 
color  to  the  plaintiff^).  To  give  color  to  the 
plaintiff,  is  to  assign  to  him,  in  the  plea,  some 
colorable  (i.  e.  defective),  but  ^fictitious  title,  of 
which  (it  being  matter  of  law,)  the  jury  is  incom- 
petent to  judge — in  order  to  justify,  in  opposition 
to  it,  a  special  statement  of  the  defendants  title ;  so 
that  the  question,  which  is  the  better  title  of  the 
two,  may  appear,  upon  the  face  of  the  plea,  as  a 
question  of  law(w).  And  thus,  by  alleging  a  fic~ 
titious  and  defective  title  in  the  plaintiff,  which 

(M)  3  Lev.  40. 

(t>)  3  Black.  Com.  309.    Lawes'  PI.  51.  126—7.  150.   10  Co. 
90.  91.  8  T.  R.  404.    Bac.  Abr.  Pleas,  &c.  I.  8.   Trespass,  I.  2. 
(to)  lid.    Com.  Dig.  Pleader,  3  M.  40.  41.    2  Chitt.  PL  555-6. 

(12)  The  more  simple  and  better  mode,  however,  of  pleading 
in  such  a  case,  would  be  to  plead,  as  to  that  part  of  the  declara- 
tion, which  the  defence  contradicts,  not  guilty  ;  and  to  plead  the 
special  matter  of  justification,  in  avoidance  of  the  other  part  only 


OF  SEPCIAL  PLEAS  IN  BAR. 

cannot  be  traversed,  the  defendant  is  enabled  to  plead    CHAP. 
specially  what,  in  fact,  is  neither  more  nor  less  than      vi. 
the  general  issue.     He  may,  for  example,  plead  a  PART  n. 
possessory  title  in  himself,  under  a  feoffment  with 
livery,  from  A.  (which  plea  would,  by  itself,  amount 
to   the  general  issue),   provided   he  adds,    that   the 
plaintiff  entered,    claiming     title    under  color  of  a 
certain  prior  deed   of  feoffment,  without   livery,  by 
which  nothing  passed  :  In  which  case,  the  title,  al- 
leged in  the  plaintiff,   is  clearly  defective,  at  com- 
mon law  (a:). 

^  82.  The  colorable  title  alleged  to  be  in  the 
plaintiff,  in  a  plea  of  this  kind,  is  not  traversable(y). 
Indeed  if  the  title,  which  the  defendant  alleges  in 
himself,  is  in  law  a  sufficient  bar  ;  a  traverse,  by 
the  plaintiff,  of  the  fictitious  title  assigned  to  him  in 
the  plea,  would  seem  necessarily  fatal  to  his  action : 
Since  it  wrould  imply  a  confession  of  the  defendant's 
title,  as  alleged  in  the  plea.  But  the  plaintiff  is  at 
liberty  to  contest  the  alleged  title  of  the  defendant, 
in  the  same  manner  in  which  he  might  contest  any 
other  matter,  pleaded  specially  in  bar,  in  the  usual 
way  (z). 

§  83.  If  the  defendant,  when  intending  to  give 
color  to  the  plaintiff,  assigns  to  him  a  title,  sufficient 
for  the  maintenance  of  the  action ;  the  plea  is  ne- 

(ar)  2  Chitt.  PI.  555-6. 
(y)  1  Chitt.  PI.  501. 

(*)  3  Black.  Com.  310.     Lawes'  PI.  150, 
45 


350 


OF  SPECIAL  PLEAS  IN  BAR. 

cessarily  ill(a)  :  Since  it  is,  in  effect,  a  confession  of 
the  plaintiff's  right  of  action. 

§  84.  There  is  no  use  in  pleading  title  specially, 
and  giving  color,  except  where  the  defendant  wish- 
es— instead  of  submitting  his  defence  to  the  jury, 
under  the  general  issue — to  have  the  question  of 
title  presented  distinctly  upon  the  face  of  the  plead- 
ings ;  to  the  end  that  it  may  be  the  more  formally 
and  deliberately  judged  of  by  the  Court ;  and  that  he 
may,  with  the  more  ease  and  certainty,  take  advan- 
tage of  any  error  in  law,  that  may  intervene. 

§  85.  3.  According  to  various  authorities,  a  spe- 
cial plea,  amounting  to  a  denial  of  the  declaration, 
and  without  giving  color,  may  in  some  cases  be 
allowed,  at  the  discretion  of  the  court(ft).  The 
cases,  in  which  such  a  plea  is  held  to  be  thus  allow- 
able, are  those  in  which  the  matter  pleaded  is  such 
as  may  '  breed  a  scruple,  in  the  lay  gents' — or,  in 
more  familiar  language,  such  as  is  likely  to  perplex 
a  jury,  and  therefore  unfit  to  be  determined  by 
them. 


Manner  of       ^  86.  In  regard  to  the  manner  of  excepting  to  a 

excepting  •    i        i  •  • 

special  plea  amounting  to  the  general  issue,  when 
not  thus  allowable,  there  is  some  apparent  contra- 
riety of  opinion  in  the  books.  According  to  one 

(a)  Com.  Dig.  Pleader,  3  M.  40.     Cro.  Jac.  122. 
(6)  Hob.   127.     1  Leon.  178.     Com.    Dig.    Pleader,  E.    14. 
Bac.  Abr.  Pleas,  &c.  G.  3.   Trespass,  I.  2.  2  Mod.  274. 


to. 


OF  SPECIAL  PLEAS  IN  BAR.  35] 

class  of  authorities,  such  a  plea  is  demurrable(c).    CHAP. 
But  according  to  other  opinions  equally  respectable,       vi. 
it  is  held  that  the  fault  in  question  is  not  a  proper  PART  n. 
cause  of  demurrer ;  and  that  the  only  proper  mode 
of  taking  exception  to  the  plea  is  by  a  motion  to  the 
court  for  an  order,  that  the  general  issue,  or  a  nil 
dicit,  be  entered (d)  :  And  that  if  the  order  is  made, 
the  defendant  must  enter  the  general  issue,  or  the 
plaintiff  may  take  judgment,  as  by  nil  dtcit(e). 

^  87.  The  question,  whether  this  latter  course, 
or  that  of  demurring,  is  the  proper  mode  of  except- 
ing to  such  a  plea,  appears  manifestly  to  depend 
upon  the  correctness  or  incorrectness  of  the  rule, 
(before  stated),  asserting  a  discretion  in  the  court,  in 
regard  to  the  allowance  of  it.  If  such  a  discretion 
can  legally  be  exercised  by  the  court,  (and  it  has 
been  actually  exercised,  by  high  and  repeated  au- 
thority) ;  the  proper  mode  of  objecting  to  the  plea 
must  be  by  motion.  For  questions  raised  by  a  de- 
murrer are  stricti  juris,  and  admit  of  no  discretion. 

§  88.  The  objection  to  a  plea  of  this  kind  has, 
however,  been  taken,  and  the  question  decided,  in 
each  of  the  above  modes.  And  perhaps  the  most 

(c)  10  Co.  95.  a.  Cro.  Car.  157.  Cro.  Eliz.  147.  Bac. 
Abr.  Pleas,  &c.  G.  3.  N.  6.  Trespass,  I.  3.  (2).  Com.  Dig. 
Pleader,  E.  I4.—  Vid.  4  B.  &  C.  547.  4  Bing.  470. 

(d)  Hob.  127.   1  Leon.  178.   Cro.  Jac.  165.  Bro.  Ab.  Traverse, 
pi.  14.  2  Mod.  274.   Com.  Dig.  Pleader,  E.  14.  Bac.  Abr.  Pleas, 
&c.  G.  3.   Trespass,  I.  2.  (2).      2  Day,  431.     Esp.  Dig.  413. 
(e)  Bac.  Abr.  Tresp.  I.  2.  (2).     Cro.  Jac.  165. 


352  OF  SPE.^IAL  PLEAS  IN  BAR. 

CHAP,  satisfactory  view  of  the  subject  will  be  found  to  be, 
vi.  that  the  proper  mode  of  objecting  to  the  plea  is,  in 
PART  ii.  the  first  instance,  by  motion — and  upon  this  suppo- 
sition,  if  the  plaintiff  should  demur,  instead  of  moving 
the  court,  the  defendant  would  not  be  bound  to  join 
in  the  demurrer ;  but  might  still  refer  the  question 
to  the  discretion  of  the  court :  But  that  if,  on  the 
plaintiff's  demurring,  the  defendant  accepts  the  de- 
murrer, by  joining  in  it,  and  thus  waves  his  right  to 
appeal  to  the  discretion  of  the  court ;  the  question 
may  be  decided  under  the  demurrer.  This  supposi- 
tion, if  correct,  may  serve  to  explain  how  it  hap- 
pens, that  two  such  dissimilar  and  apparently  incon- 
sistent modes  of  excepting  to  pleas  of  this  kind, 
have  been  pursued  ;  since  according  to  this  view 
of  the  subject,  each  of  those  modes  may,  under 
different  circumstances,  be  correct(/). 

§  89.  Not  only  special  pleas,  amounting  to  the 
general  issue,  but  also  pleas  which  allege  no  new 
matter,  and  which  expressly  and  merely  deny  the 
declaration,  but  which  vary,  in  their  form  and  terms, 
from  the  general  issue,  are  in  general  not  allowable. 
The  reason  for  disallowing  pleas  of  this  kind  is  not, 
however,  that  they  tend  to  inconvenient  prolixity, 
or  that  they  refer  matters  of  fact  to  the  court — (for 
they  are  not,  like  pleas  of  the  former  class,  liable  to 
either  of  those  objections)  ;  but  that  they  lead  to 
innovation  and  confusion,  in  the  established  modes  of 
pleading,  and  tend,  not  only  to  destroy  the  settled 

(/)    Vid.  10.  Co.  95.  a.     Bac.  Abr.  Pleas,  &c.  N.  6.     Yelv. 
174.  b.  note. 


OF  SPECIAL  PLEAS  IN  BAR.  353 

distinctions  between  the  different  species  of  pleas,  CHAP. 

but  also  to  the  introduction  of  new  pleas,  unknown  vi. 

to  the  law.  PART  n. 


§  90.  If  therefore  to  a  declaration,  alleging  the 
beating  of  J.  S.  the  plaintiff's  servant,  by  reason 
whereof/ he  lost  the  service  of  J.  S.,  the  defendant 
pleads  that  the  plaintiff  did  not  lose  the  service  of 
J.  S.,  the  plea  is  ill(g").  For  the  loss  of  service 
being  the  gist  of  the  action  ;  the  plea  is,  essentially, 
the  general  issue,  in  an  argumentative  and  improper 
form.  So  also,  where  in  trespass  for  entering  the 
plaintiff's  garden,  the  defendant  pleaded  that  the 
plaintiff  had  no  such  garden — and  where,  in  trespass 
for  depasturing  the  plaintiff's  herbage,  the  defendant 
pleaded,  that  he  did  not  depasture  the  plaintiff's 
herbage — the  pleas  were,  respectively,  held  to  be 
ill,  for  the  same  reason (h). 

&  91.     Although,   as   has    before    been    shown, 

3  ,  • 

(ttwfe,  §  77),  a  special  plea,  alleging  the  possessory  l" 
title  to  be  in  the  defendant,  and  not  giving  color,  m°n  bar 
is  ill,  as  amounting  to  the  general  issue,  in  trespass 
quare  clausum  fregit ;  yet  the  plea  of  liberum  tene- 
mentum,  (that  the  locus  in  quo  was  the  defendant's 
freehold),  has,  by  a  long  series  of  authorities,  an- 
cient and  modern,  been  sanctioned,  as  a  good  special 
plea  in  that  action,  though  it  never  gives  color(i) 

(g)  Bac.  Abr.  Tresp.  I.  2.  (2).  Bro.  Ab.  Trav.  pi.  378. 

(h)   10  H.  6.  16.  Doct.  PI.  42.    ' 

(»)  1  Saund.  299.  b.  (n.  6.)  Com.  Dig.  Pleader,  3  M.  40.  41. 
TVilles,  ai8.  Lawes'  PI.  128.  2  Chitt.  PI.  551-3.  2  Black.  R. 
1089.  2  Salk.  453.  1  Ld.  Ray.  333.  7  T.  R.  335. 


tenemen- 
im — or 
ie  com- 


354 


OF  SPECIAL  PLEAS  IN  BAR. 

§  92.  For  the  purpose  of  explaining  why  this 
latter  plea  does  not  amount  to  the  general  issue,  it 
must  be  observed  that  every  trespass  upon  property 
is  an  invasion  of  another's  possession ;  and  that  the 
action  of  trespass,  which  is  called  a  possessory  action, 
is  so  called,  because  it  is  founded  upon  a  possessory 
title.  Every  plea,  therefore,  which  denies  such  a 
title  in  the  plaintiff,  whatever  may  be  its  form,  is  in . 
effect  the  general  issue.  But  the  plea  of  liberum 
tenementum,  or,  (as  it  is  frequently  called)  *  the  com-' 
mon  bar\  is  perfectly  consistent  with  the  existence 
of  a  possessory  title  in  the  plaintiff ;  Since  a  freehold, 
in  one  person,  may  co-exist  with  an  actual  and  right- 
ful possession  of  the  same  subject,  in  another.  The 
freehold,  for  example,  may  be  in  A.,  while  B.  is  in 
rightful  possession,  under  a  subsisting  term  for  years, 
or  otherwise ;  or  the  latter  may,  without  any  de- 
rivative title,  be  in  the  actual  and  quiet  possession, 
which  of  itself  confers  a  possessory  title  against  all 
persons,  except  him,  who  has  the  right  of  possession. 
And  as  the  plea  in  question  does  not  deny  such  a 
title  in  the  plaintiff,  it  does  not  amount  to  the  general 
issue. 

^  93.  But  although  these  considerations  do,  in- 
deed, show  that  the  plea  of  liberum  tenementum  does 
not  amount  to  the  general  issue ;  they  also  seem  to 
show  that,  on  strict  principles,  the  plea  is  defective 
in  substance — as  some  highly  respectable  opinions 
hold  it  to  be(&)  :  Inasmuch  as  it  impliedly  admits 


Vid.  Willes,  222.     1  Saund.  299.  c.  (n.  6.) 


OF  SPECIAL  PLEAS  IN  BAR.  355 

a  possessory  title,  and  consequently  a  right  of  action, 
in  the  plaintiff.  Indeed,  it  is  difficult  to  understand 
how  the  matter  of  this  plea  could  ever  have  been 
supposed  to  be  a  strict  and  full  bar  to  the  action. 
And  it  appears  to  have  been  sanctioned,  not  so  much 
on  account  of  its  own  inherent  sufficiency,  as  from 
a  kind  of  necessity — that  is  to  say,  from  its  being 
•the  only  means  of  protecting  the  defendant  against 
^^disadvantage,  to  which  he  would  otherwise  be  ex- 
posed, from  the  ancient  mode  of  declaring  in  trespass 
quare  clausum  fregit.  For  formerly,  the  almost  uni- 
versal mode  of  describing  the  plaintiff's  close,  in 
this  action,  (a  mode,  which  still  may  be,  and  some- 
time&.is  pursued)(7),  was  merely  to  mention  it  as 
the  plaintiff's  '  close  at  A.',  or  his  '  close  lying  in 
the  parish  of  A.'  without  giving  its  name  or  abut- 
tals, or  any  other  designation.  The  consequence 
was,  that  the  defendant  could  not  discover  from  the 
declaration,  in  ivhat  particular  close  within  the 
parish  named,  the  plaintiff  intended  to  prove  the  al- 
leged trespass  ;  and  consequently,  could  not  know, 
with  certainty,  how  to  frame  his  defence.  He  was, 
therefore,  allowed  to  plead  that  the  close,  mention- 
ed in  the  declaration,  was  '  his  close,  soil  and  free- 
hold'^) without  giving  it  any  name,  or  further 
description.  For  the  description  of  the  close,  in  the 
declaration,  being  general;  that  in  the  plea  was 
allowed  to  be  equally  so  :  And  hence  the  plea  was 
called  the  common  (i.  e.  general)  bar  ;  the  main  object 

(/)  2  Chitt.  PI.  385-6.  387.    (note  n.)     2  Black.  R.  1089.     1 
Saund.  299.  b.  c.  (n.  6.) 
(MI)   2  Chitt.  PI.  551-2.  Com.  Dig.  Pleader,  3  M.  34. 


356  OF  SPECIAL  PLEAS  IN  BAR. 

CHAP,    of  which  was,  and  still  is,  (though  it  may  be  useful 
vi.      for  certain  other  purposes)(V),  to  drive  the  plaintiff 
PART  ii.  f-0  a  new  assignment  of   the   trespass,  and    thus  to 
compel  him  to  particularize  his  close — so  that  the 
defendant  may  know  how   to  adapt  his  defence  to 
the  actual  ground  of  complaint :     An  object  easily 
attained,  in  most  cases.     For  if  the  plaintiff  traverses 
the  plea ;  the  defendant,  by  proving  a  freehold  ii 
himself,  in  any  close  within  the  parish  or  vill  na 
in  the  declaration,  supports  his  plea,  and  defeats  the 
»       action.     And  when  the  plaintiff  has  made  a  new  as- 
signment, which  is  in  nature  of  a  new  declaration ; 
the  defendant  may,  in  his  rejoinder,  plead  to  it,  as  to 
an  original  declaration.  ^ 

Alle  in  §  94.  A  special   plea,  alleging  facts  which  would, 

facts,  which  jn  evidence,  maintain  the  general  issue,  does  not,  in 

would  prove 

the  general  ^\\  cases,  and  necessarily,  amount  to  the  general  is- 

issue.  '  J  1 

sue.  For  no  plea— whether  it  admits  or  denies 
that  there  was  once  a  right  of  action — can  properly 
be  said  to  amount  to  the  general  issue,  unless  it  goes 
in  denial  of  the  declaration. 

^  95.     Thus  in  assumpsit — -payment,  release,  ac- 
t    cord,  &c.  all  which  admit  that  the  alleged  cause  of 
action  once  existed — as  also,  infancy,  coverture,  du- 
ress, usury,  &c.  which  deny  that  it  ever  existed,  may 
respectively  be  pleaded  specially  ;  although  each  of 
Ante,  §47.    these    defences    would,  in   evidence,    maintain    the 

(n)  2  Chitt.  PI.    551.  (n.  s.)     8  T.  R.  404. 


OF  SPECIAL  PLEAS  IN  BAR.  357 

general  issue(o).     For  they  all   admit  the  truth  of    CHAP. 
the  declaration.  vi. 

PART  II. 

And  this  right  in   the   defendant,  either  to  plead  

special  matters  of  defence,  or  to  give  them  in  evi- 
dence under  the  general  issue,  exists,  to  a  great  ex- 
tent, as  has  been  before  shown  (ante,  ^  54.  55),  in 
actions  of  trespass  on  the  case,  ex  delicto(p). 
% 

^  96.  Every  special  plea  must  contain  issuable 
matter(^)  ;  for  the  plain  reason,  that  it  would  not 
otherwise  be  triable.  The  same  rule  extends  to  all 
special  pleading,  in  all  its  stages.  If  therefore,  in 
debt  or  assumpsit,  the  defendant  pleads  only  that  he 
was  ready,  or  willing,  to  pay  according  to  his  con- 
tract ;  the  plea  is  ill — because  the  fact  averred  is 
not  issuable.  Such  a  plea  would  indeed  be  ill  for 
another  reason,  viz.  that  the  fact  of  mere  readiness, 
or  willingness,  is  immaterial ;  since  it  is  neither  a 
performance  nor  a  discharge  of  the  contract.  Its 
not  being  issuable  is,  however,  a  sufficient  objec- 
tion to  it. 

^  97.  On  the  same  principle,  every  special  plea,  Must  con- 
in  which  matter  of  fact  and  matter  of  law  are  so  &•  matter. 
blended,  that  they  cannot  be  separated,  is  ill(r). 

(o)  1  Ld.  Ray.  88-9.  566.  1  Salk.  394.  3  Ib.  273.  5  Mod.  18. 
Com.  Dig.  Pleader,  E.  14.  Chitt.  on  Bills,  197-8.  Lawes'  PI.  112. 
Tidd,  591.  599.  Sayer,  270. 

(p)  3  Burr.  1353.  1  Chitt.  PI.  486-7.  1  Black.  R.  388.  1 
Wills.  45.  8  East,  308.  2  Phil.  Ev.  108. 

(g)   Lawes'  PI.  137-8.     2  Wills.  74. 

(r)   9  Co.  25.  a.     Lawes'  PI.  138.     2  Mod.  55. 

46 


OF  SPECIAL  PLEAS  IN  BAR. 

CHAP.    If  therefore,  to  trespass  for  false  imprisonment,  the 

vi.       defendant  pleads  that  he  arrested  the  plaintiff,  by 

PART  ii.  lawful  authority,  without  showing  what  the  authority 

was  ;  the  plea  is  bad,  as  not  being  issuable.     For  a 

traverse  of  the  plea  would  put  in  issue  all  matters  of 
law,  as  well  as  of  fact,  which  might  conduce  to  show 
the  defendant's  authority  :  Whereas  matter  of  law 
is  never  issuable.  The  plea,  in  such  a  case,  ought 
to  state  the  defendant's  authority  specially — no| 
only  that  its  legal  sufficiency  may  be  judged  of  by 
the  court,  from  the  record ;  but  also  that  the  plain- 
tiff may  be  enabled  to  traverse,  distinctly,  the  matter 
of  fact  alleged  in  it.  So  also  where  the  defendant, 
being  bound  by  a  condition,  to  produce  to  the^)lain- 
tiff  a  sufficient  discharge  of  a  certain  demand,  plead- 
ed that  he  had  produced  '  a  sufficient  discharge', 
without  stating  its  tenor  or  contents,  the  plea  was 
held  ill,  on  the  principles  above  stated(s), 

SSer  §  ^S.  A  plea  in  bar,  pleaded  to  the  whole  decla- 

the  whole     ration,  must  contain  a  sufficient  answer  in  law  to 

gravamen. 

the  whole  gravamen,  or  cause  of  action  :  Otherwise 
it  is  ill  for  the  whole(i)  ;  and  the  plaintiff  is  enti- 
tled to  recover  for  the  whole.  Thus,  if  in  trespass 
for  assault,  battery  and  mayhem,  the  defendant 
pleads  to  the  whole,  matter  which  is  in  law  a  justi^ 
fication  of  the  assault  and  battery  only ;  the  plea  is 

(s]  9  Co.  25.  a. 

(0  Co.  Litt.  303.  a.  1  Saund.  28.  (n.  2.)  2  Ib.  50. 127.  210.  b. 
c.  (n.  1).  Yelv.  225.  Com.  Dig.  Pleader,  E.  1.  Lawes'  PI.  135. 
171.  Cro.  Eliz.  268.  331.  Cro.  Jac.  27.  5T.  R.  553.  1  Lev.  48, 


OF  SPECIAL  PLEAS  IN  BAR.  359 

ill  in  toto,  and  the  plaintiff  is  entitled  to  damages,  as    CHAP. 
well  for  the  assault  and  battery,  as  for  the  mayhem.      vi. 
For  an  entire  plea,  going  to  the  whole  declaration,  is  PART  n. 
indivisible  in  its  effect ;  and  cannot  operate  as  a  bar 
to  any  part  of  the  cause  of  action,  unless  it  consti- 
tutes in  law  a  bar  to  the  whole. 

^  99.  Thus  also,  if  to  an  action  of  trespass,  the 
defendant  pleads  a  justification,  (as  a  license),  on 
any  day  different  from  that  laid  in  the  declaration  ; 
he  must  traverse  the  commission  of  the  trespass  on 
any  other  day,  either  before  or  after  that  mentioned 
in  his  plea,  and  before  the  commencement  of  the 
suit(w)  :  Otherwise  the  defence  will  not  be  co- 
extensive with  the  declaration  ;  or  in  other  words, 
will  not  cover  the  whole  time,  within  which  the 
plaintiff  is  at  liberty  to  prove  the  trespass  complain^ 
ed  of.  For  the  day  in  the  declaration  being  imma- 
terial ;  the  plaintiff  has  a  right  to  prove  the  trespass 
on  any  day  before  the  date  of  the  writ.  But  the 
justification,  if  true,  applies  only  to  the  particular 
day  laid  in  the  plea^-and  without  the  traverse-, 
would  therefore  imply  an  admission,  that  the  tres- 
pass complained  of  was  committed  on  any  other  day 
than  that.  Upon  the  same  principle,  if  the  defend- 
ant in  trespass  pleads  a  release  on  a  particular  day  ; 
he  should  traverse  his  guilt,  as  to  all  subsequent 
time,  before  the  commencement  of  the  suit :  Or  if 
he  pleads  title,  acquired  by  himself — -as  by  a  feoffr 

(u)  Hob.  104.  Bac.  Abr.  Pleas,  &c.  H.  4.  1  Saund.  14.  298. 

(n.  2.)     2  Ib.  5.  a.  (u.  3.)     1  T.  R.  636.     1  Chitt.  PI.  531 

Post.  ch.  7,  $  45. 


360  OF  spECIAL  PLEAS  IN  BAR. 

CHAP.    ment — on  a  particular  day  ;  he  should  traverse,  as 
vi.       to  all  previous  time(V)  :  Otherwise,    the  plea   will 
PART  ii.  not  cover  all  the  time  covered  by  the  declaration. 
Vid.  ante,  ch.  3(13). 

^  100.  The  general  principle  above  stated,  that 
an  entire  plea  is  indivisible,  extends  to  all  the  sub- 
sequent pleadings  ;  and  therefore  an  entire  replica- 
tion, if  bad  for  part  of  the  plea — or  an  entire  re- 
joinder, if  bad  for  part  of  the  replication,  is  so  for 
the  whole(iv}. 

§  101.  Upon  the  same  principle,  if  two  co- 
defendants  join  in  a  plea,  which  is  in  law  a  suffi- 
cient justification  for  one  of  them  only  ;  it  is  bad  as 
to  both  of  them(V).  If  therefore  an  arrest  is  made 
under  irregular  process,  (which  though  irregular, 
justifies  the  officer  executing  it,  but  not  the  party 
who  prayed  it  out) — and  in  an  action  for  false  im- 
prisonment, against  both  of  them,  they  join  in  a 
plea,  justifying  the  arrest  by  virtue  of  the  process  ; 

(»)  Hob.  104.     Bac.  Abr.  Pleas,  &c.  H.  4. 
(to)   1  Saund.  28.  (n.  2.)     2  Ib.  127.     1  T.  R.  40. 
(x)   Stra.    509.   993.    1184.      1  "\Vils..  17.     3  T.  R.  377.  Cas. 
Temp.     Hardw.  62.  69,     3  Mass.  R.  312. 

(13)  In  cases  like  these  two  last,  however,  the  simpler  and 
better,  and  at  this  time  the  more  usual,  mode  of  pleading  is,  to 
divide  the  defence  into  two  pleas,  by  pleading  as  to  all  time,  ex- 
cept the  day  or  time  covered  by  the  justification,  or  other  matter 
of  avoidance,  not  guilty,  concluding  to  the  country  ;  and  as  to  that 
day  or  time,  by  pleading  the  matter  of  justification,  &c.  specially, 
with  a  verification.  (2  Chitt.  PI.  519.  520.  n.  y.) 


OF  SPECIAL  PLEAS  IN  BAR. 

judgment  must  go  against  both.     For  the  plea,  which    CHAP. 
is  joint,  being  ill  quoad  one  of  them,  is  consequently       vi. 
ill  for  both.     The  officer  should  have  pleaded  sep-  PART  n. 
arately. 

§  102.  But  though  the  defence  must,  in  all 
cases,  answer  the  whole  declaration,  or  alleged  cause 
of  action ;  it  is  not  necessary  that  the  whole  be 
answered  by  one  plea :  It  is  necessary  only,  that 
the  whole  matter  of  defence  pleaded,  cover  the  whole 
complaint.  The  defendant  may,  therefore,  plead 
several  different  matters  of  defence,  in  several  differ- 
ent pleas,  to  as  many  different  parts  of  the  declara- 
tion, or  alleged  cause  of  action.  And  if  all  the 
pleas,  taken  together,  form  a  sufficient  answer  to 
the  whole  matter  of  complaint ;  the  defence  is  com- 
plete. 

§  103.  Thus,  in  trespass  for  cutting  down  ten  of 
the  plaintiff's  timber-trees,  the  defendant  may  plead, 
as  to  all  the  trees  except  one — not  guilty ;  and  as  to 
the  remaining  one,  any  matter  of  avoidance — as  a 
license,  or  other  justification  ;  or  a  release,  a  former 
recovery,  &c.  So  also  in  debt,  or  assumpsit,  for 
1000  dollars,  the  defendant  may  plead  as  to  500 
dollars,  (parcel  of  the  1000),  nil  debet,  or  non  assump- 
sit ;  and  as  to  the  residue,  release,  payment,  tender, 
&c. :  or  he  may  plead  several  special  pleas  to  differ- 
ent parts  of  the  demand — as  payment  of  part,  and 
tender  of  the  residue(i/) :  Or  finally,  he  may  plead 

(y)  Co.  Litt.  304.  a.    Lawes'  PI.  107.     Bac.  Abr.  Pleas,  &c. 
K.  1.  N.  1. 


OF  SPECIAL  PLEAS  IN  BAR. 

CHAP.    to  Part  °f  tne  declaration,  and  demur  to  the  resi- 

vi.       due(2).      Thus,  if  in  covenant  broken,   the  declara- 

PART  ii.  tion  alleges  two  breaches,   one   (of  which  is)  well 

assigned,   and    the   other  ill ;    the    defendant    may 

plead  to  the  former  assignment,  and  demur  to  the 
latter. 

§  104.  Every  plea  to  the  action  is  taken,  as  ex- 
tending to  the  whole  declaration  or  gravamen,  unless 
expressly  limited  to  a  part  of  it,  by  beginning  as  an 
answer  to  a  part  only.  And  as  to  the  mode  of  tak- 
ing advantage  of  a  plea,  which  does  not  answer  the 
whole  ground  of  the  complaint,  the  three  following 
rules  are  to  be  observed  : — 


When 
answering 
only  part 
of  the 
gravamen, 
how  to 
except  to 
it. 


1.  Where  matter,  pleaded  as  an  answer  to 
the  whole,  is  in  law  a  good  answer  to  a  part  only, 
the  proper  mode  of  excepting  to  it  is  by  demur- 
rer(a) — as  in  the  case  before  mentioned,  where  to 
assault,  battery  and  mayhem,  the  defendant  pleads 
to  the  whole,  what  is  an  answer  in  law  to  the  as- 
sault and  battery  only.  So  also,  if  in  an  action 
against  a  bailee,  for  goods  delivered  to  him  *  to 
keep  and  carry',  he  pleads  to  the  ivhole  declaration, 
that  he  was  discharged  from  keeping  them,  without 
answering  his  obligation  to  carry;  the  plea  is  de- 
murrable(b).  For  in  these  cases,  the  ground  of  ob- 
jection to  the  plea  is,  not  that  it  is  irregular  and  in- 

(z)  Bac.  Abr.  Pleas,  &c.  N.  1. 

(a)   1  Saund.  28.  (n.  3.)   1  Salk.  179.  1  Stra.  303.  Lavves'  PI. 
135-6. 
(6)  lid. 


OF  SPECIAL  PLEAS  IN  BAR. 

admissible ;  but  merely  that  it  is  insufficient  in  law.    CHAP. 
And  such  is    the    proper    course    for    the    plaintiff,       vi. 
whenever  a  plea,  purporting  to  be  an  answer  to  the  PART  u. 
whole  declaration,  (as  it  does  of  course,  unless  ex- 
pressly limited,  as  mentioned    above),  is  in    law   a 
sufficient  answer  to  part  of  it  only. 

§  105.  2.  But  if  the  plea  purports  to  answer 
only  apart  of  the  declaration,  and  is  in  law  a  suffi- 
cient answer  to  that  part  only,  the  other  part  being 
left  unanswered — (as  if,  in  an  action  like  that  stat- 
ed above,  against  a  bailee,  for  goods  delivered  to 
him  to  be  kept  and  carried,  he  pleads,  as  to  his  un- 
dertaking to  keep,  that  he  was  discharged  thereof, 
without  answering,  in  any  way,  the  other  part  of 
his  undertaking)  ;  the  plea  is  void,  and  of  course 
considered  as  no  plea.  The  plaintiff  therefore  should 
not,  in  such  a  case,  demur;  but  should  sign  judg- 
ment, as  by  nil  dicit,  that  is,  as  for  want  of  a  plea(c), 
For  such  a  plea,  being  considered  in  law  as  no  plea, 
is  a  discontinuance,  on  the  defendant's  part.  And 
therefore,  if  the  plaintiff  accept  it  as  a  plea,  by  de- 
murring to  it,  he  discontinues  the  whole  action, 

^  106.  To  explain  the  reason  of  this  rule,  it 
must  be  observed  that  the  court  has  no  right,  in  any 
case,  to  determine  any  one  part  of  an  entire  cause 
of  action,  leaving  the  rest  undecided.  The  whole 
must  be,  in  some  way,  determined  :  Otherwise  a 

<  (c)  Com.  Dig.  Pleader,  E.  1.  1  Saund.  28.  (n.  3.)  Gilb. 
A.  G.  P.  158.  1  Salk.  179.  180.  1  Stra.  302.  2  Ld.  Ray.  841. 
7  Mod.  124.  4  Co.  62.  a.  1  Selw.  N.  P.  5.  (n.  7.)  Lawes' 
PI.  135-6. 


OF  SPECIAL  PLEAS  IN  BAR. 

CHAP,  single  right  of  action  might  require  several  suits, 
vi.  If  then,  the  defendant  makes  answer  to  only  a  part 

PART  ii.  of  the  plaintiff's  complaint ;  the  answer  is  regarded 
as  no  plea ;  because  it  does  not  enable  the  court  to 
determine  the  whole.  It  is  therefore  tantamount 
to  a  nil  dicit,  and  discontinues  the  whole  defence.  It 
results  then,  that  if  the  plaintiff,  who  has  a  right  to 
treat  such  an  answer  as  a  nullity,  accepts  it  as  a 
plea,  by  demurring  or  pleading  to  it ;  and  thus,  in 
effect,  prays  judgment  for  only  apart  of  his  cause 
of  action ;  he  discontinues  his  whole  action. 

^107.  3.  And  if  the  defendant  pleads,  in  apart 
of  the  cause  of  action,  matter  which  would  be  in 
law  a  sufficient  answer  to  the  whole,  if  pleaded  to  the 
whole  ;  the  rule  is  the  same — and  the  plaintiff  must 
not  demur,  but  take  his  judgment,  as  in  the  preced- 
ing case,  and  for  the  same  reason  (<?).  For  though 
the  matter  pleaded  be  sufficient  to  bar  the  whole 
action  ;  yet,  not  being  pleaded  to  the  whole,  it  can- 
not be  applied  as  an  answer  to  the  whole.  If  there- 
fore, in  trespass  for  cutting  ten  of  the  plaintiff's 
growing  trees,  the  defendant  pleads  as  to  all  the 
trees,  except  one,  a  release  of  all  trespasses — or  if  in 
the  case  mentioned  above,  of  a  bailment  of  goods 
to  be  kept  and  carried,  the  defendant  pleads,  as  to 
his  undertaking  to  keep,  a  release  of  all  demands ; 
the  plaintiff  must  sign  judgment,  as  by  nil  dicit. 
Such  appear  to  be  the  established  distinctions,  under 
this  head. 


(d)   1  Stra.  302-3.     1  Ld.   Ray.  231.     1   Saund.  28.  (n.  3.) 
4  Co.  62.  a. 


OF  SPECIAL  PLEAS  IN  BAR. 

^  108.  Yet  where  a  plea,   beginning   as  an   an-     CHAP. 
swer  to  only  a  part  of  the  plaintiff 's  demand,   not       vi. 
only  alleged   matter,  which  in  law  would  have  been  PART  n. 
a  bar  to   the   whole,  but,  in   the   body  of  it,  actually 
answered  the  whole — (as  where  in  assumpsit  on  a 
note,  payable  by  sixteen  half-yearly  instalments,  the 
defendant  pleaded  as  to  all  of  them,  except  the  last, 
that  none  of  them  had  accrued   within  six  years) — 
it  was  resolved  that  the  plea  was  ill,  on  special  de- 
murrer, by  reason  of  its  inconsistency,  in  beginning 
as  an   answer  to  part  of  the   demand,  and   actually 
answering  the  whole(e}>      For  the   court  appear  to 
have  considered  the  inconsistency  of  the  plea  with 
itself,  as  rendering  it  anomalous,  and  as  thus  taking 
it  out  of  the  rule  stated  in  the  last  section. 


109.  But   no  plea   is  ever  required   to  answer,  atrarava. 

tion  needs 
no  answer. 


Matter     of 

expressly,  any  part  of  the  declaration  which  is  not 
of  the  gist  of  the  action.  Hence,  matter  of  aggra- 
vation— as  the  alia  enormia,  in  a  declaration  in 
trespass — requires  no  express  answer(y).  Thus, 
where  in  trespass  for  assault  and  battery,  the  de- 
claration, after  alleging  the  assault  and  beating, 
adds,  '  and  other  wrongs  to  the  plaintiff  then  and 
there  did',  a  plea,  justifying  the  assault  and  battery 
only,  is  a  sufficient  answer  to  the  whole  complaint. 

(e)   2  Bos.  &  P.  427. 

(/)   1  Saund.  28.  (n.  3.)     3  Wils.  20.     2  Ib.  313.    2  Campb. 
175.    3  T.  R.  297. 

47 


OF  SPECIAL  PLEAS  IN  BAR. 

CHAP.        %  HO.    Thus  also,  in  trespass   for  breaking  and 

vi.      entering   the   plaintiff's  house,    and   expelling   him 

PART  ii.  therefrom,  or  destroying  his   goods,  a  plea    to  the 

~~ whole,  and  which  in  law  justifies  the  breaking  and 

What  an-  •* 

swers  the     entering  the  house,  though  silent  as  to  the  other  al- 

gist  of  the  ° 

action,        Wed  wrongs,  is  a  good   answer  to  the  whole  de- 
covers  all 

matters  of    claration  :  The  breaking,  &c.  being  the  gist  of  the 

aggrava- 
tion, action ;  and  the  expulsion,  &c.  only  matter  of  ag- 
gravation^). For  as  the  action  is,  in  its  title,  and 
consequently  in  its  character,  trespass  quare  domum 
fregit ;  the  breaking,  &c.  of  the  house  constitutes 
the  whole  gist  of  the  complaint.  Yet  if  the  plain- 
tiff, in  the  case  now  supposed,  relies  upon  the  expul- 
sion, or  the  injury  to  his  goods,  as  a  distinct  ground 
of  damages ;  he  may,  by  a  new  assignment  of  it,  in 
his  replication,  convert  it  into  a  substantive  cause  of 
action,  and  thus  entitle  himself  to  a  recovery,  not- 
withstanding the  justification  of  the  breaking  of  the 
house(A)(14). 

(g)   1  T.  R.  479.  636.    3  Ib.  292.     3  Wils.  20.    1  H.  Black. 
555.  3  N.  Hamp.  R.  511. 
(h)   lid. 


(14)  A  novel  or  new  assignment  consists  in  alleging,  with  all 
necessary  particularity,  in  the  replication,  facts  which  the  declara- 
tion has  alleged  in  general  terms ;  and  in  this  way,  the  plaintiff 
may  convert  into  a  substantive  cause  of  action,  what  appears,  in 
the  declaration,  as  matter  of  mere  aggravation — as  in  the  exam- 
ple given  in  the  text,  (2  Chitt.  PI.  653-7.  Lavves'  PI.  165.  1 
Saund.  299.  a.  b.  (n.  6.)  A  new  assignment  being  in  the  nature 
of  a  declaration ;  the  defendant  may  plead  to  it,  de  «oto,  as  to  a 
common  declaration,  (3  East,  294.  Lawes'  PI.  165.  1  Saund. 
299.  a.  b.  (n.  6.)  A  new  assignment  must,  in  general,  conclude 


OF  SPECIAL  PLEAS  IN  BAR. 


^111.     Every  justification  pleaded  must,  express-    CHAP. 
ly  or  tacitly,  confess  the  act  which  it  is  intended  to       vi. 
justify  (/).     For  it  is  absurd  to  plead  in  avoidance  PARTII. 
of  a  fact,  which  the  plea  does  not  admit.     If  there- 
fore,  to  a  declaration  charging  assault,  battery  and 
wounding,  the  defendant,  as  to  the  assault  and  bat- 
tery, confesses,  and  justifies  an  act  not  amounting  to 
a  battery,  with  a  qua  est  eadem  transgressio  ;  the 
plea  is   ill,   for   the  above  reason;  but  ill  only  on 
special  demurrer  —  as    the    fault    is   only    formal(A:). 
The   plea,  in  such  a  case,  should  be  the  general 
isstte. 


Anciently,  if  the  defence  to  an  action 
consisted  of  matter  of  avoidance  ;  it  was  necessary 
for  the  defendant  to  state  specially,  in  his  plea,  all 
the  particular  facts,  which  constituted  the  defence, 
however  multifarious  they  might  be(7).  And  this 
rule  is,  undoubtedly,  conformable  to  the  strict  prin- 
ciples of  pleading.  For  each  fact,  essential  to  the 

(i)  1   Saund.  13.  14.  (n.  3.)    28.  (n.   1.)     1  Salk.  394.     3  T. 
R.  298.     Carth.  380.     Esp.  Dig.  318. 
(k)   1  Saund.  14.  (n.  3.)  28.  (n.  1.) 
(/)  Co.  Litt.  303.     8  Co.  133.     Bac.  Abr.  Pleas,  &c.  I.  3. 


with  an  averment,  that  the  wrongs,  or  causes  of  complaint,  alleged 
in  it,  are  different  from  those  mentioned  in  the  plea,  (1  Saund. 
299.  (n.  6.)  Lawes'  PI.  164-5.  240.  241)  :  For  otherwise  a  new 
assignment  is  unnecessary.  And  if  the  averment  is  untrue,  the 
defendant  may,  for  that  cause,  plead  the  general  issue  to  the  new 
assignment — as  that  issue  involves  a  denial  of  the  averment.;  (1 
Saund.  299.  c.  (n.  6.)  Lawes'  PI.  241.— Post.  ch.  8,  §§  75- 
77.) 


368 


OF  SPECIAL  PLEAS  IN  BAR. 


CHAP,    defence,  being   matter  of  law,   ought,   in   strictness, 
vi.      to  be  shown  to  the   court  by  the  plea.     But  from 
PART  ii.  necessity,  or  at  least  for  the  avoiding  of  great  incon- 
venience,  this  rule  has  been  somewhat  relaxed. 


General 
pleading 
when  al- 
lowed. 


§  113.  And  now,  as  in  declarations  (ante,  ch. 
4),  so  also  in  special  pleas  in  bar,  general  pleading 
is  sometimes  allowed,  for  the  purpose  of  avoiding 
great  prolixity :  (it  being  now  an  established  rule, 
that  no  greater  particularity  can  be  required  in 
pleading,  than  the  nature  of  the  subject  will  con- 
veniently admit  of.  ]  When  therefore,  one  is  sued  on 
an  obligation,  binding  him  affirmatively  to  the  per- 
formance of  an  indefinite  number  of  acts,  the  par- 
ticular recital  of  which  would  render  the  pleadings 
inconveniently  prolix,  he  may  plead  performance,  in 
general  terms  ;  and  thus  leave  it  to  the  plaintiff  to 
assign  any  particular  breach  or  breaches,  in  the  re- 
plication. And  as  the  breach  or  breaches,  thus  as- 
signed, must  be  specific ;  the  matter  in  controversy 
will  of  course  be  presented  with  sufficient  cer- 
tainty (m). 

§114.  Thus,  if  a  sheriff  executes  a  bond,  with 
condition  that  he  shall  return  all  writs  delivered  to 
him,  &c. ;  he  may,  in  an  action  on  this  obligation, 
plead  performance  in  general  terms,  by  averring  that 
he  has  returned  '  all  writs  delivered  to  him,'  &c. 
(pursuing  the  words  of  the  condition) — without 

(m)  Cro.  Eliz.  749.  916.  Co.  Litt.  303.  b.  Bac.  Abr.  Pleas, 
&,c.  I.  3.  1  Saund.  117.  (n.  1.)  2  Tb.  410.  (n.  3.  4.)  1  T. 
R.  753.  1  Sid.  215.  334.  Sayer,  317. 


OF  SPECIAL  PLEAS  IN  BAR. 

specifying  any  particular  writ(n).     So  also,  where     CHAP. 
the  defendant  was  bound  in  an  obligation  to  deliver       vi. 
to  the  plaintiff,  upon  request,  all  the  fat  and  tallow  PART  ir. 
of  all  beasts,  which  he,  his  servants,  &c.  should  kill  " 

before  such  a  day — a  plea,  that  upon  every  request 
made  to  him,  he  delivered  to  the  plaintiff  all  the  fat 
and  tallow  of  all  beasts,  which  were  killed  by  him, 
his  servants,  &c.  before  the  said  day,  without  spe- 
cifying any  particular  act  of  delivery,  was  adjudged 
sufficient(o).  So  also,  if  the  defendant  is  bound  in 
an  obligation,  with  condition  that  he  should  pay 
over  to  the  plaintiff  '  all  the  monies  which  he  should 
receive  for  the  plaintiff,'  within  a  certain  time ;  it  is 
a  sufficient  plea  of  performance,  that  he  has  paid 
over  to  the  plaintiff  '  all  the  monies'  so  received, 
within  that  timeQ?).  Again  :  When  the  obligation 
is  still  more  general — as  that  the  obligor  shall  per- 
form all  the  duties  of  a  certain  office,  during  a  cer- 
tain time,  it  is  sufficient  on  his  part,  to  plead  that  he 
has  performed  '  all  the  duties'  of  the  office,  during 
that  time(</).  And  in  all  such  cases,  it  becomes  in- 
cumbent on  the  plaintiff"  to  assign  specially,  in  his 
replication,  the  breach  or  breaches  on  which  he 
founds  his  right  of  recovery. 

§  115.  But  this  relaxation  of  the  original  rule 
before  mentioned,  (ante,  §  113),  extends  only  to 
cases,  in  which  the  acts  required  to  be  done,  on  the 

(n)  1  T.  R.  753. 

(o)  Cro.  Eliz.  749. 

(j»)  2  Burr.  772.   1  Bos.  &  P.  640.  8  T.  R.  459.  8  East,  85. 

(7)  2  Saund.  403.  410.  (n.  3.) 


370  OF  SPECIAL  PLEAS  IN  BAR. 

CHAP.    Part  °f  tne  defendant,  are  in  some  degree  indefinite, 
vi.       or  at  least  not  precisely  ascertained,  either  in  the  ob- 
PARTII.  ligation  sued  upon,   or  in  any  other  instrument  re- 
ferred to  in  it — as  in  the  examples  just  stated,   of 
an  obligation  to  return  all  writs,  &c. 

§  116.  If  therefore,  the  condition  of  the  obliga- 
tion, on  which  the  action  is  founded,  requires  the 
performance  of  acts,  which,  however  numerous,  are 
specifically  ascertained  in  the  instrument  itself,  or  in 
any  other  instrument  referred  to  in  it ;  the  defend- 
ant must  plead  specially  the  performance  of  each  of 
the  particular  acts,  so  ascertained (r).  For  in  no 
such  case,  can  it  be  objected,  that  the  defendant  is 
unable  to  specify  each  particular  act  of  performance  ; 
and  generally  such  a  specification  will  not  make  the 
plea  more  multifarious  than  the  condition  itself, 
which  enumerates  the  acts  to  be  done.  And  there- 
fore, if  the  defendant  is  bound,  by  the  condition  of 
a  bond,  to  pay  all  the  legacies  contained  in  a  certain 
will ;  he  must  enumerate  them  all,  and  specially 
allege  payment  of  each  of  them ;  concluding  with 
an  averment,  that  those  thus  mentioned  in  the  plea 
are  all,  that  are  contained  in  the  will.  Or  if  the 
condition  be,  that  he  shall  enfeoff  the  plaintiff  of  all 
the  lands  described  in  a  certain  deed ;  he  must 
plead  in  a  similar  manner,  concluding  with  a  similar 
averment(V). 

(r)  1  T.  R.  753.  Cro.  Eliz.  749.  916.  1  Saund.  116.  117.  (n. 
1.)  4  East,  344. 

(*)  1  Bulstr.  43.  1  Saund.  117.  (n.  1.)  IT.  R.  753.  Palm.  70. 
Keilw.  95.  b.  pi.  3. 


OF  SPECIAL  PLEAS  IN  BAR.  37] 

^117.  Ill  cases  of  this  last  kind,  however,  if  the    CHAP. 
defendant  pleads  performance,  in  general  terms,  (as      vi. 
by  averring  that  he  did  well  and   truly  perform  and  PART  n. 
fulfil  all  and  singular  the  conditions,  &c.)  ;  the  plea 
is    ill,  only  on   special   demurrer (t).     For  preform- 
ancc,  in  whatever  manner  alleged,  being  in  substance 
a  sufficient  defence  ;  the   fault  in  the  plea   is  only 
formal. 

§  118.  But  to  negative  conditions  or  stipula- 
tions— as  to  a  bond,  conditioned  for  the  keeping  of 
negative  covenants,  a  general  or  other  plea  of  'per- 
formance' is  never  proper(if).  For  '  performance,' 
being  a  term  implying  some  positive  act,  does  not 
properly  express  the  keeping  of  a  mere  negative 
condition  or  covenant.  If  then  any  of  the  cove- 
nants or  stipulations,  mentioned  in  the  condition  of 
an  obligation,  or  in  a  deed  of  covenant,  are  in  the 
negative;  the  defendant  should  plead,  as  to  these, 
(and  usually  in  the  words  of  the  condition  or  cove- 
nant), that  he  has  not  done  any  of  the  acts  cove- 
nanted against. 

§  119.  Thus  if  a  lessee,  having  covenanted, 
among  other  things,  that  he  will  not  cut  down  any 
of  the  timber-trees  on  the  demised  premises,  nor 
suffer  any  of  the  buildings  thereon  to  be  injured  for 
want  of  repairs,  gives  a  bond  for  the  performance  of 
the  covenants  in  the  lease  ;  in  debt  on  the  bond, 

(/)   1  Saund.  117.  (n.  1.)     Bac.  Abr.  Pleas,  &c.  I.  3. 
(«)  Co.  Litt.  303.  b.     Esp.  Dig.  305.     Bac.  Abr.  Pleas,  &c. 
I.  3.     Cro.  Eliz.  691. 


372  OF  SPECIAL  PLEAS  IN  BAR. 

CHAP,    his  proper  mode  of   pleading,  as  to  these  negative 
vi.       covenants,  is,  that  he   did  not  cut  down  any  of  the 
PART  ii.  timber-trees,  &c.  nor  suffer  any  of  the   buildings  to 
be    injured    for   want   of    repairs^).      And    if    the 
covenant  were  more  general,  viz.  that  he  would  not 
commit  any  ivaste ;  he  should  still  not  plead  that  he 
had  performed  the  covenant ;  but  that  he  had  not, 
in  any  manner,  committed  any  waste.      Yet    if  the 
defendant,  in  either  of  these  last  cases,  pleads  per- 
formance affirmatively,  and   in    general  terms ;   the 
fault  in  the  plea  is  but  formal  (if). 

Actionem  §  120.  A  special  plea  in  bar,  (after  the  formal 
introduction,  technically  called  the  '  defence'),  be- 
gins regularly  with  actionem  non — an  averment  that 
the  plaintiff  ought  not  to  have,  or  maintain,  his  ac- 
tion— concluding  with  a  verification,  and  praying 
judgment  of  the  action(x).  The  rejoinder,  and  sub- 
sequent special  pleading  on  the  part  of  the  defen- 
dant, begin  and  conclude  in  a  similar  manner. 

Preciudi  ^  121.  A  special  replication  begins  with  precludi 
non,  i.  e.  that  the  plaintiff  ought  not  to  be  barred, 
&c.  ;  and  concludes  with  a  verification,  and  a  prayer 
of  judgment,  and  his  debt,  damages,  fcc.  to  be  ad- 
judged to  him(?/).  The  surrejoinder,  and  the  special 
pleading  which  follows  it,  on  the  part  of  the  plaintiff, 
begin  and  conclude  in  a  similar  manner. 

(t>)   2  Saund.  409.  410. 

(to)  Bac.  Abr.  Pleas,  &c.  I.  3.  &  see  1  Saund.  117.  (n.  1.) 

(x)  2  Chitt.  PI.  421-2. 

(y)  2  Chitt.  PI.  593-4.  615.  616. 


OF  PLEAS  PUIS  BAHREIN  CONTINUANCE.  373 


Of  Pleas  Puts  Darrein  Continuance. 

§  122.  As  the  defendant  is  allowed,  by  the  com- 
mon law,  to  plead  only  one  plea,  of  any  one  kind 
or  class  ;  so  also,  after  having  pleaded,  within  the 
time  allowed  for  that  purpose,  any  one  matter  of 
defence,  he  cannot,  in  general,  and  as  a  matter  of 
right,  retract  it  and  substitute  another^).  If  it  were 
otherwise,  the  defendant  might  protract  the  proceed- 
ings interminably,  by  repeatedly  shifting  his  ground 
of  defence. 

§  123.  But  to  this  general  rule  there  is  an  ex- 
ception, when  new  matter  of  defence  arises,  after  he 
has  once  pleaded,  and  after  the  last  continuance  (or 
adjournment)  of  the  cause(a).  For  it  would  be 
unreasonable  to  preclude  him  from  pleading  matter 
thus  arising,  and  which  it  was  not  in  his  power  to 
plead  in  the  first  instance.  The  new  plea,  which 
this  exception  to  the  general  rule  allows,  is  called  a 
plea  puis  darrein  continuance — since  (or  after)  the 
last  continuance. — It  is  here  to  be  observed,  that 
during  the  whole  proceedings  in  a  suit,  from  the 
time  of  the  defendant's  appearance,  until  its  final 
determination,  the  cause  is  to  be  continued,  (or  as  it 
is  sometimes  expressed,  the  parties  must  be  '  con- 
tinued' in  court),  from  day  to  day,  or  from  time  to 

(2)  Lawes'  PI.   173.     Bac.  Abr.  Pleas,  &c.  Q.     1  Chitt.   PI. 
635.     Doct.  PI.  297. 

(a)  lid.      3  Black.  Com.  316.  317.      Oilb.  H.  C.  P.  105. 
48 


OF  PLEAS  PUIS  DARREIN  CONTINUANCE. 


374 

CHAP,    time,   by  regular  entries,  to  be  made  for  that  pur- 
pose.    And  when  any  new  matter  of  defence  arises, 


VI. 


PART  ii.  between  two  of  these  continuances  or  adjournments, 
it  may  be  pleaded  puis  darrein  continuance,  before 
the  next  continuance,  notwithstanding  the  pendency 
of  a  prior  plea(6). 

§  124.  Pleas  of  this  kind  may  be  either  'in  abate- 
ment, or  in  bar  ;  and  may  be  pleaded,  even  after  an 
issue  joined,  either  in  fact  or  in  law,  if  the  new 
matter  has  arisen  after  the  issue  was  joined,  and  is 
pleaded  before  the  next  adjournment(c).  Thus,  if 
the  plaintiff,  being  a  feme  sole,  has  married  since 
the  last  continuance  ;  her  marriage  may  be  pleaded, 
before  the  next  continuance,  to  her  disability,  al- 
though the  regular  time  for  pleading  such  a  plea  has 
elapsed.  So  also,  if  the  plaintiff  has,  since  the  last 
continuance,  released  the  right  of  action  ;  the  de- 
fendant may,  in  the  same  manner,  plead  the  release 
in  bar,  although  he  has  previously  pleaded,  and  issue 
has  been  joined  upon  a  different  matter  of  defence. 
But  if  he  suffers  another  continuance  to  intervene, 
before  he  pleads  such  new  matter  ;  he  waves  it,  and 
cannot  afterwards  plead  it(<f).  Nor  can  he  plead 
any  such  plea,  after  a  demurrer  determined,  or  verdict 
found  —  all  pleading  in  the  cause  being  then  at  an 


(6)  lid. 

(c)  Com.-Dig.  Abatement,  I.  24.     1  Chitt.  PI.  637.     3  Black. 
Com.  316.     5  Peters,  232. 

(d)  lid.    Bac.  Abr.  Pleas,  &c.  Q.    Lawes'  PI.  174. 

3  Black.  Com.  317. 


OF  PLEAS  PUIS  DARREIN  CONTINUANCE.  375 

§  125.     It  is  said  that  there  can  be  but  one  plea    CHAP. 
puis  darrein  continuance,  in  one  and  the  same  cause,       vi. 
lest   the  proceedings  should    be  protracted  in  injini-  PART  n. 
turn,  or  beyond»any  assignable   limit(e).     But  mat- 
ter of  abatement  may  be  pleaded,  puis  darrein  con- 
tinuance, though  the  defendant  has  previously  plead- 
ed in  bar(f).     For  a  plea  in  bar  waves  only  such 
matters    of   abatement,  as   existed    at   the   time    of 
pleading  in  bar. 

§  126.  A  plea  of  this  kind,  in  abatement,  begins 
and  concludes  like  a  plea  of  the  same  kind,  when 
pleaded  in  the  first  instance ;  but  when  pleaded 
in  bar,  it  begins  with  saying  that  the  plaintiff  ought 
not  further  to  maintain  his  action ;  and  concludes 
by  praying  judgment,  if  the  plaintiff  ought  further 
to  maintain  his  action^).  In  other  respects,  pleas 
of  this  kind  are  governed  by  the  same  rules,  which 
regulate  other  pleas  in  general. 

(e)   Lawes'  PI.  174.     Gilb.  H.  C.  P.  105.     1  Chitt.  PI.  638. 

(/)  Gilb.  H.  C.  P.  105.  Andr.  328.  2  Stra.  1106.  1  Chitt. 
PI.  636.  14  Mass.  R.  295. 

(g)  Lavres'  PI.  174-5.  Bull.  N.  P.  310.  Cro.  Eliz.  49.  5 
Peters,  281-2.  1  Chitt.  PI.  637.  Vid.  3  N.  Hamp.  R.  102. 


CHAPTER  VII. 

" 


OF    TRAVERSE. 

SECTION   1.  A  traverse,  in  pleading,  is  a  denial, 
HAP*    on  one  side,  of  some  matter  of  fact  before  alleged, 

VII. 

on  the  other;  and  (regularly)   tenders  an  issue  in 

fact(A). 

§  2.  A  traverse  may  be  taken  to  any  part  of 
the  pleadings — as  to  the  declaration,  the  plea, 
the  replication,  &c.(f)  :  Though  when  the  whole 
substance  of  the  declaration  is  to  be  denied,  the 
proper  form  of  denial  is  the  general  issue  ;  which  is 
a  compendious  traverse  of  the  whole  complaint. 

^3.  A  traverse,  concluding  to. the  country,  forms 
an  issue  in  fact ;  so  that  nothing  more  is  necessary, 
to  prepare  the  matter  in  controversy  for  trial,  than 
the  addition  of  the  similiter — by  the  addition  of 
which  the  issue  is  joined.  But  a  traverse,  conclud- 
ing with  a  verification,  only  tenders  an  issue,  which 
remains  to  be  formed  by  the  adverse  party's  re- 

(A)   Bac.  Abr.  Pleas,  &c.  H.  1.     Co.  Litt.  282. 
(t)   Doct.  PI.  344.     Bac.  Abr.  Pleas,  &c.  H.  1. 


OF  TRAVERSE.  377 

affirming  the  allegation  traversed,  and  concluding  to    CHAP. 
the  country  (&).  vn. 

§  4.  A  technical  traverse  is  one  which  is  preced- 
ed by  introductory  affirmative  matter,  called  the 
inducement  to  the  traverse  (/)  ;  and  may  be  general 
or  special. 

^5.  A  general  traverse,  of  the  technical  kind,  is  JJ"^ 
one  preceded  by  a  general  inducement,  and  denying, 
in  general  terms,  all  that  is  last  before  alleged  on 
the  opposite  side — instead  of  pursuing  the  words  of 
the  allegations,  which  it  denies.  Of  this  sort  of 
traverse,  the  replication  de  injuriu  su"  propria,  abs- 
que  tali  causd,  in  answer  to  a  justification,  is  a  fa- 
miliar example  (m). 

^6.  A  technical  traverse,  when  special,  begins,  Special 
in  most  cases,  with  the  words  '  absque  hoc?  (without 
this) ;  which  words,  in  pleading,  constitute  a  tech- 
nical form  of  negation(w).  A  traverse,  commenc- 
ing with  these  words,  is  called  special;  because, 
when  it  thus  commences,  the  inducement  and  the 
negation  are,  regularly,  both  special — the  former 
consisting  of  new  special  matter,  and  the  latter  pur- 
suing, in  general,  the  words  of  the  allegation  tra- 
versed, or  at  least,  those  of  them  which  are  ma- 
terial. 

(k)  Bac.  Abr.  Pleas,  &c.  H.  1. 

(/)   Ib. 

(m)   Ib. 

(/»)  Ib.     Lawes'  PI.  116  to  120. 


378  OF  TRAVERSE. 

CHAP.  §  ?•  Thus,  if  to  debt  on  bond  the  defendant 
vii.  pleads,  that  he  executed  the  bond  by  duress  ;  and 
the  plaintiff  replies,  that  the  defendant  executed  it 
of  his  own  free  will,  and  for  valuable  consideration, 
without  this,  that  he  executed  it  by  duress  ;  the  tra- 
verse is  special.  For,  so  also,  if  the  defendant  pleads 
title  to  land,  in  himself,  by  alleging  that  J.  S.  died 
seised  in  fee,  and  devised  the  land  to  him  ;  and  the 
plaintiff  replies,  that  J.  S.  died  seised  in  fee,  intes- 
tate, and  alleges  title  in  himself,  as  heir  to  J.  S. 
1  without  this,7  that  J.  S.  devised  the  land  to  the  de- 
fendant ;  the  traverse  is  special(o).  Here  the  alle- 
gation of  J.  S.'s  intestacy,  &c.  forms  a  special  in- 
ducement ;  and  the  absque  hoc,  with  what  follows  it, 
is  a  special  denial  of  the  alleged  devise,  i.  e.  a  denial 
of  it,  in  the  words  of  the  allegation. 

^  8.     In   some   cases,    however,   other   words   of 
equivalent  import  —  as  the  words  et  non  —  are  used, 
instead  of  the  words  absque  hoc.     Thus,  if  the  de- 
fendant pleads  that  J.  S.  was  arrested,  by  virtue  of 
a  warrant  returnable  on  the  first  day  of  such  a  cer- 
tain month  ;  the  plaintiff  may  reply,  that  J.  S.  was 
arrested  upon  a  warrant   returnable  on  the  second 
day  of  the  same  month,  '  and  no?  by  virtue  of  the 
warrant  returnable  on  the  first  day  of   the  month 
specified  in  the 


§  9*  The  traverse  de  injurid,  &c.  absque  tali 
caus»,  (that  the  defendant,  «  of  his  own  wrong,  and 
without  the  cause  in  his  plea  alleged,  did  commit  the 

(o)  Lawes'  PI.  119.  120. 

(p)   1  Saund.  20.  21.     Lawes'  PI.  119.  120. 


OF  TRAVERSE.  379 

said  trespasses,'  &c.)»  though  of  frequent  occurrence,    CHAP. 
is  confined  to  actions  ex  delicto,  and  used  only  in      vn. 
replications.     This  does  not,  like  a  special  traverse, 
follow   the  words  of  the  allegations  traversed ;  but 
denies  the  whole  matter  of  the   plea,  by  a  general 
and  comprehensive  formula,  devised  for  the  purpose 
of  abridging  the  replication. 

Thus,  if  to  an  action  of  assault  and  battery,  the 
defendant  pleads  son  assault  demesne,  (that  the  plain- 
tiff made  the  first  assault,  &c.)  ;  the  plaintiff,  instead 
of  traversing  specially  all  the  material  allegations  in 
the  plea,  may  deny  the  whole,  by  replying  that  the 
defendant,  '  of  his  own  ivrong,  and  without  the  cause 
in  his  said  plea  alleged,'  committed  the  several  tres- 
passes, &;c.  and  conclude  to  the  country(^).  In  this 
traverse,  not  only  the  form  of  denial,  but  the  induce- 
ment also,  varies  essentially  from  that  of  a  special 
traverse :  Since  the  inducement  de  injurid,  &c.  al- 
leges no  new  matter ;  but  simply  re-affirms,  in  general 
terms,  the  wrongs  complained  of  in  the  declaration, 
and  the  traverse  absque  tali  causa  is  an  abridged  deni- 
al of  the  special  justification. 

^10.  The  late  precedents  have  introduced,  in 
certain  cases,  (as  in  replications  to  pleas  of  usury, 
or  other  illegality),  a  new  species  of  general  or 
abridged  traverse,  preceded  by  a  general  induce- 
ment, which  denies  the  plea,  in  general  terms,  ac- 
cording to  an  established  form,  instead  of  traversing 
it  specially,  by  following  the  precise  terms  of  it,  as 

(q)  2  Chitt.  PI.  523.  641-2.    Cro.  Car.  164.  Bac.  Abr.  Pleas, 
&c.  H.  1. 


OF  TRAVERSE. 

CHAP.    was  formerly  done.     This  traverse  concludes  to  the 
vii.      country  (r)(l). 

§11.  There  is  also  a  species  of  traverse,  differ- 
traverse.  ing  from  all  those  called  technical,  not  only  in  form 
and  phraseology,  but  also  in  this-^hat  it  is  pre- 
ceded by  no  inducement,  special  or  general.  This 
traverse  is  taken  without  an  absque  hoc,  or  any  simi- 
lar words,  and  is  simply  a  direct  denial  of  the  ad- 
verse allegation,  in  common  negative  language,  (for 
which  reason,  perhaps,  it  is  usually  called  a  common 
traverse),  and  always  concludes  to  the  country. 
And  because  it  has  no  inducement,  it  is  also  some- 
times called  '  an  issue,'  as  distinguished  from  a 
'  traverse,'  technically  so  called (5).  Thus  if  one 
party  pleads  title  to  land  in  himself,  under  a  devise 
from  J.  S.,  alleging  that  J.  S.  died  seised  in  fee, 
and  devised  the  land  to  him ;  the  other  party  may 
traverse  the  seisin  in  fee  of  J.  S.,  either  by  averring 
that  J.  S.  '  died  seised  in  tail,  (or  for  life)  absque 
hoc,  that  he  died  seised  in  fee  ;'  and  concluding  with 
an  averment — or,  by  a  direct  negative,  alleging, 

(r)   2  T.  R.  439.     3  Ib.  426.     1  Saund.  103.  b.  (n.  3.) 
(a)  Lawes'  PI.  117.     1  Saund.  103.  b.  (n.  1.)    2  Stra.  871. 

(1)  The  usual  form  of  this  traverse  is  as  follows,  viz.  that  'the 
said  bond,  promise,  &c.  was  made,  for  a  good  and  lawful  con- 
sideration, and  not  in  pursuance  of,  or  upon,  the  said  corrupt  and 
unlawful  agreement,  or  for  the  purpose,  in  the  said  plea  of  the 
said  C.  D.  mentioned,  in  manner  and  form,  &c.  and  this  the  said 
A.  B.  prays  may  be  inquired  of  by  the  country.'  ( Vid.  2  T.  R. 
439.  3  Ib.  426.  2  Chitt.  PI.  616.) 


OF  TRA.VEJRSE. 

(without   an   inducement),  that  J.  S.    'did  not  die     CHAP. 
seised  in  fee,'  &c.  and  concluding  to  the  country.  viz. 

^12.  But  a  common  traverse  is  not  adapted  to 
all  cases,  in  which  the  allegations  of  a  party  are  to 
be  denied.  For  it  is,  many  times,  necessary,  as  will 
hereafter  appear,  that  the  denial  of  an  adverse  alle- 
gation be  preceded  by  affirmative  matter,  by  way  of 
inducement ;  and  when  this  is  necessary,  a  common 
traverse,  (which  has  no  inducement),  can  never  be 
proper.  It  can  properly  be  used,  only  where  no  in- 
ducement is  necessary(Z)  ;  that  is,  where  the  party 
traversing  has  no  occasion  to  allege  any  neiv  matter. 

§13.  But  whenever  a  common  traverse  is  proper, 
it  is  generally  the  more  eligible  mode  of  travers- 
ing— not  only  because  it  is  a  more  simple  and 
direct  form  of  negation ;  but  also  because  it  pro- 
duces an  issue  sooner,  by  one  stage  in  the  pleadings, 
than  a  traverse  with  an  absque  hoc  usually  does. 
For  a  common  traverse  always  concludes  to  the 
country:  Whereas,  a  traverse  with  an  absque  hoc 
concludes,  in  most  cases,  with  an  averment ;  and  the 
issue  is  then  formed  by  the  opposite  party's  re- 
affirming, in  the  next  succeeding  stage  of  the  plead- 
ings, what  the  traverse  has  denied  (w). 

Thus,  if  to  a  plea  of  title,  stating  that  J.  S.  died 
seised  in  fee,  and  devised  the  land  to  the  defendant, 
the  plaintiff  denies  the  seisin  in  fee  of  J.  S.  by  a 

(0   1   Saund.  103  b.  (n.  1.) 

(M)   1  Saund.  103.  b.  (n.  1.)     Bac.  Abr.  Pleas,  &c.  H.  1. 
49 


OF  TRAVERSE. 


CHAP,  common  traverse,  viz.  that  he  did  not  die  seised  in 
viz.  fee,  &c.  concluding  to  the  country  ;  the  issue  is 
formed  by  the  replication.  But  if  the  plaintiff 
traverses  specially,  by  replying  that  J.  S.  died  seised 
in  tail,  absque  hoc  that  he  died  seised  in  fee,  con- 
cluding with  an  averment  ;  the  issue  is  not  formed, 
till  the  defendant  re-affirms,  in  the  rejoinder,  that 
J.  S.  died  seised  in  fee,  as  alleged  in  the  plea,  and 
concludes  to  the  country. 

§14.  Whenever  a  special  traverse,  and  its  in- 
ducement, are  properly  adapted  to  each  other,  and 
both  go  to  the  '  same  point'  —  i.  e.  the  same  matter 
of  fact  (as  in  all  the  preceding  examples  they  do)  — 
the  traverse  is  only  an  inference  from,  or  a  consequence 
oj,  the  inducement  ;  so  that,  if  the  one  be  true,  the 
other  is  necessarily  so(2).  It  results,  therefore, 
that  in  all  such  cases,  the  inducement  itself  neces- 
sarily contradicts  the  allegation  traversed.  But 
though  the  inducement  is  repugnant  to  the  allega- 
tion to  be  denied  ;  the  superaddition  of  a  formal 
traverse  is  nevertheless  indispensable  :  Because  the 
adverse  allegation,  and  the  inducement  to  the 
traverse,  being  both  in  the  affirmative,  do  not  con- 
stitute an  issue.  (Vide  ch.  6,  ^  1  .  2.  3.) 

§  15.  The  truth  of  these  remarks  will  be  ap- 
parent, from  a  mere  recurrence  to  the  several  exani- 

(2)  Examples  of  an  inducement,  and  a  traverse,  going  to  dif- 
ferent points,  will  be  given  hereafter,  (Vid.  '  traverse  after  a  tra- 
verse' ;  post,  §  45.) 


OF  TRAVERSE. 


pies,  already  given,  of  special  traverses.  One  of  CHAP. 
these  examples,  however,  may  suffice  ;  as  the  ex-  vii. 
planation  to  be  given  of  it  will  apply  equally  to 
all  the  others  :  In  the  instance  before  mentioned, 
(ante,  §  11),  of  an  allegation  in  the  plea,  that 
'  J.  S.  died  seised  in  fee',  and  a  replication,  that  he 
*  died  seised  in  tail,  without  this,  that  he  died  seised 
'  in  fee',  it  is  observable,  in  the  first  place,  that  the 
inducement  and  the  traverse  both  go  to  the  same 
point,  i.  e.  to  the  single  question,  whether  he  died 
seised  of  a  fee-simple,  or  not.  It  is  very  obvious 
also,  that  the  traverse  is  a  mere  inference  from  the 
inducement  ;  and  that  if  the  latter  be  true,  the 
former  must  be  so  :  And  finally,  that  the  induce- 
ment is  as  utterly  repugnant  to  the  allegation  in  the 
plea,  (though  not  so,  in  direct  terms),  as  is  the 
traverse  itself.  In  brief,  the  replication  is  merely 
tantamount  to  saying  that  '  J.  S.  died  seised  in  tail? 
and  therefore  did  not  die  seised  in  fee'.  None  of 
these  observations,  however,  are  applicable  to  cases, 
in  which  the  inducement  and  the  traverse  go  to 
different  points. 


^16.  As  to  the  manner  of  concluding  traverses,  Manner  of 
there  is  some  discrepancy  in   the   precedents  ;  but  c< 
the  following  appear  to  be  the  true  distinctions  : 


1.  A  common  traverse  always  concludes  to  the 
country(v).  For,  as  it  is  preceded  by  no  induce- 
ment, there  can  be  no  possible  use  in  keeping  the 

(»)  1  Saund.  103.  b.  (u.  1.)  Bac.  Abr.  Pleas,  &c.  H.  1.  2 
Stra.  871.  7  Johns.  R.  283. 


on*  OF  TRAVERSE. 

CHAP,    pleadings   longer  open :    Since    the   traverse,  being 
vii.      connected  with  no  new  matter  of  any  kind,  leaves 

nothing  to  be  answered  by  the  adverse  party.     If, 

however,  the  traverse  be  immaterial,  or  otherwise 
ill  taken  ;  it  may,  like  any  other  traverse  thus  faul- 
ty, be  demurred  to. 

§  17.  2.  A  general  technical  traverse,  having  a 
general  inducement,  (as  in  the  instance  of  the  repli- 
cation de  imjurifa  &c.  absque  tali  causa),  concludes  in 
the  same  manner^).  For  in  this  case,  the  induce- 
ment, (which  is  but  a  re-affirmance,  in  general  terms, 
of  what  has  been  before  alleged  in  the  declaration), 
contains,  properly  speaking,  no  new  matter ;  arid 
consequently,  neither  requires  nor  admits  of  any 
kind  of  answer.  And  it  may  be  added,  that  as  every 
such  traverse  denies  the  whole  of  what  is  last  alleged 
in  the  adverse  pleading ;  it  cannot  be  immaterial, 
and  consequently  must  be  accepted  by  the  opposite 
party,  unless  it  be  faulty  in  form — and  if  so,  it  may 
be  demurred  to.  It  is  obvious,  therefore,  that  in 
this  case,  as  in  the  last,  there  can  be  no  possible 
reason  for  keeping  the  pleadings  any  longer  open  to 
an  answer. 

^18.  3.  When  a  traverse  is  taken  with  an 
absque  hoc,  and  is  preceded  by  a  special  induce- 
ment, containing  new  matter,  it  was  formerly  held 
by  some,  that  the  conclusion  must,  in  all  cases,  be 

(to)  2  Chitt.   PI.  523.  641.  642.     Bac.  Abr.  Pleas,  &c.  H.  1. 
1  Saund.  103.  b.  (n.  1.)  2  Black.  R.  1165.   1  Bos.  &  P.  76. 


OF  TRAVERSE.  385 

with  an  averment^) — in  order  to  afford    the    ad-    CHAP. 
v.erse  party  an  opportunity,  to  answer,  (at  his  own     vii. 
peril,  indeed),  the  new  matter  contained  in  the  in- 
ducement. 

§  19.  4.  But  the  modern  authorities,  more  stu- 
dious of  brevity  in  pleading,  than  the  ancient,  have 
qualified  this  last  rule  ;  and  it  appears  now  to  be 
established,  as  a  general  rule,  that  where  a  traverse, 
even  with  an  absque  hoc,  and  preceded  by  a  special 
inducement,  denies  the  whole  substance  of  what  is 
alleged  on  the  other  side,  it  must  conclude  to  the 
country(y)  :  Though,  where  it  denies  only  a  part 
of  the  matter,  alleged  by  the  adverse  party,  it  must 
still,  generally,  conclude  with  an,averment(yy). 
. 

^  20.  The  reason  of  this  distinction  appears  to 
be,  on  the  one  hand,  that  in  the  former  case,  the 
party,  whose  pleading  is  traversed,  cannot  object  to 
the  traverse  as  being  immaterial,  or  as  not  compre- 
hending the  whole  matter  in  controversy  ;  since,  by 
the  supposition,  it  embraces  all  the  substantive  mat- 
ter alleged  on  his  own  part.  No  reason  therefore 
can  exist,  (so  far  as  regards  the  substance  of  the 
traverse),  why  he  should  refuse  to  join  in  it,  and  be 
permitted  to  answer  over.  But  when,  on  the  other 
hand,  a  special  traverse  embraces  only  part  of  the 

(x)  Co.  Litt.  126.  a.   1  Saund.  103.  a.  (n.  1.)  2  Stra.  871. 

(i/)  1  Salk.  4.  7  Mod.  105.  Doug.  94.  428.  2  T.  R.  441. 
443.  2  Stra.  871.  1  Saund.  103.  a.  b.  (n.  1.)  Sayer,  234.  2 
Johns.  R.  428. 


386  OF  TRAVERSE. 

CHAP,  substance  of  the  adverse  pleading,  the  reason  for  con- 
vn.  eluding  it  with  an  averment  is,  that  such  a  traverse 
may  be  immaterial ;  and  that  if  it  be  so,  it  may  be 
proper  for  him  to  whom  it  is  tendered  to  answer  the 
inducement.  For  which  latter  reason,  a  traverse, 
denying  only  a  part  of  what  is  alleged  on  the  other 
side,  must  (regularly)  leave  the  pleadings  open — in 
order  to  give  the  adverse  party  an  opportunity  to 
plead  to  the  inducement,  if  he  should  judge  it  safe 
and  proper  so  to  plead. 

§  21.  This  view  of  the  subject  may  be  illustrat- 
ed by  the  following  example  :  In  an  action  of  waste, 
the  declaration  alleges  that  the  defendant,  (the  les- 
see), felled,  and  sold  the  plaintiff's  trees  ;  and  the 
defendant,  confessing  that  he  felled  them,  pleads, 
by  way  of  justification,  that  he  bestowed  them  in 
repairs,  absque  hoc  that  he  sold  them — thus  travers- 
ing only  a  part,  and  an  immaterial  part,  of  the 
declaration.  And  as  this  traverse  is  clearly  imma- 
terial ;  the  plaintiff  is  not  bound  to  join  in  it,  but 
has  a  right  to  reply  that  the  defendant  left  the  trees 
to  decay,  &c.  absque  hoc  that  he  bestowed  them  in 
repairs — thus  traversing  the  inducement  to  the  de- 
fendant's traverse (z).  But  this  the  plaintiff  could 
have  no  opportunity  to  do,  if  the  defendant's  traverse 
concluded  to  the  country :  And  therefore,  according 
to  the  general  distinction  above  stated,  the  defend- 
ant's traverse  ought  to  conclude  with  an  averment. 
Such  seems  to  be  the  principle  or  reason  of  the  rule, 

(z)  Hob.  104. 


OF  TRAVERSE.  387 

that  a  special  traverse  with  an  absque  hoc,  embrac-    CHAP. 
ing  only  part  of  what  is  alleged  on  the  other  side,      vn. 
must,  in  general,  conclude  with  an  averment. 

§  22.    But  the    rule,   that   a    special    traverse    of  ^asvpe°r^eal 
only  a   part  of  what  is  alleged   on  the  other  side,  J^'_s!?™e~ 

J  J.  UHWWj  C(J1I- 

must  conclude  with  an  averment,  is  by  no  means  £ewe^y 
universal.  For  it  seems  now  agreed,  that  '  in  many 
cases'  falling  within  the  terms  of  the  rule,  the  con- 
clusion may  be  either  wm/(«)(3).  In  what  particu- 
lar cases,  however,  such  a  traverse  may  conclude  in 
'  either  way?  the  books  do  not  precisely  show(6). 
In  the  case  of  Baynham  v.  Mathews(c),  which  was 
an  action  on  a  promissory  note,  the  defendant 
pleaded  usury,  and  the  plaintiff  replied  that  the 
note  was  given  for  a  just  debt,  absque  hoc,  that  it 
was  corruptly  agreed,  &c.  concluding  to  the  country. 
And  there  being  two  material  facts  alleged  in  the 
plea,  (viz.  1st,  an  usurious  agreement;  and  2d,  that 
the  note  was  given  in  consideration  of  that  agree- 
ment), and  one  of  them  only  being  traversed ;  the 
court  held,  on  special  demurrer,  that  the  traverse 

(a)   1  Saund.    103.  a.  b.     2  T,   R.  439.  443.     2  Wils.   113. 
Lawes'  PI.  121.  1  Chitt.  PI.  615.  616. 
(6)  2  Stra.  871.  1  Burr.  317. 
(c)   2  Stra.  871. 

(3)  It  can  be  only  by  the  sanction  of  precedent,  (founded  origi- 
nally upon  some  mistake),  that  the  pleader  is  allowed,  in  any  in- 
stance whatever,  to  conclude  a  traverse  either  way,  at  his  own 
election.  On  principle,  the  admission  that  one  of  the  two  modes 
of  concluding  any  given  traverse  is  proper,  would  seem  to  imply 
that  the  other  is,  by  necessary  consequence,  improper. 


388  OF  TRAVERSE. 

CHAP,  should  have  concluded  with  an  averment.  But  in 
vn.  the  subsequent  case  of  Hedges  v.  Sandon(d)  Buller 
and  Grose,  Js.,  in  commenting  on  the  case  of 
Baynham  v.  Mathews,  both  expressed  a  decided 
opinion,  that  the  traverse,  in  that  case,  might  pro- 
perly have  concluded  either  way. 

§  23.  It  seems  now,  therefore,  that  although  a 
plea  of  usury,  to  an  action  on  a  written  security, 
regularly  alleges  two  material  facts,  as  above  stated  ; 
yet  a  special  traverse,  denying  the  corrupt  agree- 
ment only,  may  conclude  to  the  country :  Since  the 
negation  of  that  fact  is  a  decisive  answer  in  law  to 
the  whole  defence.  Such  a  conclusion,  however, 
in  such  a  case,  is  confessedly  opposed  to  the  rule 
which  originally  prevailed  ;  and  there  is  no  doubt, 
that  such  a  traverse  may  still  conclude  with  an 
averment.  And  even  in  the  more  modern  prece- 
dents, the  latter,  it  seems,  is  the  more  usual  mode 
of  concluding  such  traverses(e).  It  may  be  added, 
that  in  cases,  where  a  doubt  still  exists  as  to  the 
proper  manner  of  concluding  such  a  traverse,  this 
latter  form  is  probably  the  safer ;  since,  by  all  the 
opinions,  it  is  a  proper  form — though,  as  some  hold, 
not  the  only  proper  one. 

^  24.  But  where  one  of  several  facts,  alleged  by 
either  party,  constitutes  the  whole  substance  of  his 
pleading — all  the  others  being  immaterial — the  rule 
now  appears  to  be,  clearly,  that  a  special  traverse 

(d)  2  T.  R.  439.  443—4. 

(e)  1  Saund.  103.  b.  (n.  1.)     1  Chitt.  PI.  616. 


OF  TRAVERSE.  339 

of  that  fact  alone  may  conclude  to  the  country;  and    CHAP. 
the   Court  of  King's  Bench(/)  have  held,  that  it      vii. 

must  so  conclude.     The  case,  here  referred  to,  was  

debt  on  bond  :  Plea,  that  the  defendant  executed 
the  bond  through  force  and  restraint  of  imprison- 
ment :  Replication,  that  the  defendant  executed  it 
of  his  own  free  will,  absque  hoc,  that  he  executed  it 
through  force,  &c.  without  answering  the  imprison- 
ment, and  concluding  with  an  averment.  On  special 
demurrer,  showing  for  cause,  that  the  conclusion  was 
ill,  the  court  held  that  it  was  so ;  and  that  the  con- 
clusion should  have  been  to  the  country  ;  because — - 
the  imprisonment  being  immaterial — the  duress  was 
the  whole  substance  of  the  plea. 

^  25.     Whether,  by  the  common  law,  the  wrong  A  wron<r 
conclusion  of  a  traverse  is  a  fault  in  substance,  or  in  vWalesThe 
form  only,  the  opinions  are  not  all  agreed.     Accord-  traverse- 
ing  to  most  of  the  authorities,  it  is  matter  of  sub- 
stance, and  fatal  on  general  demurrer  (g).     As,  how- 
ever, the  conclusion  of  a  traverse  neither  affirms  nor 
denies  any  fact  in  controversy,  and  shows  nothing 
material  to  the  cause,  on  either  side — but  is  simply 
a  technical  form  of  closing  the  pleadings,  or  keeping 
them   open ;    this   rule    may,   perhaps,    on    original 
principles,  be  questionable. 

^  26.     The  general    replication,  de  injuria,  &c.  ^fsTwhen 
absque  tali  caus&,  is  adapted  to  the  denial  of  matter  ,a  proiT. 

A  lorm  ot  tra- 

versing. 

(/)   Sayer,  234 — and  (with  some  circumstantial  differences)  in 
William's  note,  1  Saund.  103.  a. 

(g)   1  Vent.  240.     T.  Ray.  94.     1  Saund.  103.  b.  (n,  1.)     3 
Mod.  203.     Cro.  Car.  164. 
50 


390  OF  TRAVERSE. 

CHAP.    of  excuse  or  justification ;  and  where  the  excuse  or 
vn.      justification  consists,  exclusively,  of  mere  matter  of 
— — —  fact,  as  distinguished  from  matter  of  record,  title, 
authority,  &c.  this  replication  is  the  most  appropri- 
ate mode  of  traversing  it(ft). 

§  27.  But  as  this  replication  always  denies  the 
whole  of  the  plea,  to  which  it  is  an  answer(z)  ;  it 
follows,  that  when  the  plea  contains,  among  other 
things,  matter  of  record,  right,  title,  or  authority,  (all 
of  which  involve  matter  of  laiv),  the  general  tra- 
verse, absque  tali  causd,  is  improper(&).  For  this 
general  traverse,  which  must  conclude  to  the  coun- 
try(l),  is  not  only  inapposite  to  the  denial  of  such 
matters  of  law,  but  would  refer  to  the  jury  matter 
both  of  law  and  fact,  blended  in  one  issue,  instead  of 
separating  the  one  from  the  other,  as  the  principles 
of  pleading  require,  (ch.  6,  ^  97.)  And  it  would 
moreover,  for  the  last  reason,  be  faulty,  as  being 
double(m). 

§  28.  It  results  then,  that  to  the  plea  of  son 
assault  demesne,  the  traverse,  absque  tali  causa,  is  a 
good  answer :  Since  the  plea  consists  of  matter  of 

(&)  Lawes'  PL  151-156.  8  Co.  67.  Com.  Dig.  Pleader*  F. 
20.  21.  Yelv.  158.  n. 

(i)  2  Saund.  295.  (n.  1.)     8  Co.  67.  a. 

(&)  lid.  1  Chitt.  PI.  578—9.  581—3.  8  Co.  67-8.  Com. 
Dig.  Pleader,  F.  20.  21.  22.  1  Bos.  &  P.  79.  80.  Willes,  103. 
n.  a.  5  Johns.  R.  112. 

(/)  Cro.  Car.  164. 

(w)  8  Co.  67.  b.  Bull.  N.  P.  93. 


OF  TRAVERSE.  39  J 

mere  fact(n).      And   the  same  rule   applies   to  all    CHAP. 
justifications,  consisting  exclusively  of  such  matter.          vn. 

&  29.  But  when  the  justification  involves  matter  Wheni 

proper* 

of  law,  (as  where  in  an  action  for  assault,  battery 
and  false  imprisonment,  the  defendant  justifies,  under 
a  capias  directed  to  the  sheriff,  and  a  warrant  from 
the  sheriff  to  himself),  this  general  traverse  of  the 
justification  would  be  ill,  as  including  matter  of 
record  and  authority,  viz.  the  capias  and  the  war- 
rant^). But  the  plaintiff,  in  a  case  like  this,  may 
traverse,  separately,  any  one  material  point  in  the 
plea  ;  which  point  may  consist  either  of  the  record 
or  authority  —  or  of  the  matter  of  mere  fact,  plead- 
ed in  connexion  with  it.  He  may,  for  example, 
traverse  the  warrant,  by  replying  that  the  defendant, 
de  injuria,  &c.  absque  tali  warranto,  made  the  said 
assault,  &c.  —  or  he  may  traverse  the  capias,  by  re- 
plying nul  tiel  record  :  Or  on  the  other  hand,  he  may 
admit  the  capias  and  warrant,  and  traverse  the  mat- 
ter of  mere  fact  alleged  in  the  plea,  by  alleging  that 
the  defendant  '  of  his  own  wrong,  and  without  the 
residue  of  the  cause,  in  the  said  plea  alleged',  made 
the  said  assault, 


§  30.  But  when  matter  of  record,  title,  &c.  is 
alleged,  not  as  the  ground  of  the  justification,  but 

(n)  2  Chit.  PI.  642.  Com.  Dig.  Pleader,  F.  18.  3  M.  15. 
Lawes'  PI.  155. 

(o)  8  Co.  67.  a.  2  Saund.  295.  (n.  1.)  1  Bos.  &  P.  77.  Com. 
Dig.  Pleader,  F.  20.  12  Mod.  580.  Lawes'  PI.  154.  1  Chitt.  PI. 
582. 

(p)   lid.  3  Lev.  243.  2  Chitt.  PI.  G44-5. 


OF  TRAVERSE 

CHAP.    ^ty  as  inducement,  the  general  replication,  de  inju- 
vn.      rid,  &c.  absque   tali  c««s«,  is  good.     If  therefore,  in 

assault  and  battery,  the  defendant  alleges  that  he 

was  seised  of  an  estate  in  a  certain  close — that  he 
had  cut  the  corn,  growing  upon  it — that  the  plain- 
tiff came  to  take  away  the  corn,  and  that  the  de- 
fendant, in  defence  of  his  corn,  did  the  acts  com- 
plained of;  the  plaintiff  may  traverse  the  plea,  in 
the  above  general  form(</).  For  in  this  case,  the 
justification  is  not  founded  upon  the  defendant's 
title ;  but  upon  the  alleged  aggression  of  the  plain- 
tiff. The  title  pleaded  is,  therefore,  but  inducement, 
and  being  immaterial,  the  defendant  is  not  bound  to 
prove  it  strictly  :  Proof  of  his  mere  possession  being, 
on  this  point,  sufficient. 

^  31.  We  have  before  seen,  that  one  principal 
object  of  the  science  of  pleading  is  to  bring  the 
parties  to  an  issue,  of  some  kind,  as  soon  as  the 
state  of  the  facts,  alleged  in  each  case,  will  permit. 
When  therefore  an  allegation,  on  one  side,  is  direct- 
ly denied  on  the  other,-  by  a  common  negative,  the 
The  super-  super addition  of  a  technical  traverse  is  unnecessary 

addition  of          J ,      .  -      .  „  ,  - 

atechni-      and  improper,  and  therefore  a  good  cause  of  demur- 
common,      rer(r).      Thus,  if  to  a  plea  of  usury,  the  plaintiff 

traverse,  ,.  ,  - 

is  iii.  replies  that  it  was  not  corruptly  agreed,  &c.  as  the 
defendant  has  alleged,  absque  hoc  that  it  ivas  cor- 
ruptly agreed,  &c.  ;  the  replication  is  [ill.  For  the 

(q)  Yelv.  157.  Lawes'  PI.  156.  2  Saund.  295.  b.  (n.  1.)  Cro. 
Jac.  224.  Latch,  221. 

(r)  Yelv.  38.  Cro.  Eliz.  755.  Bac.  Abr.  Pleas,  &c.  II.  1.  2 
Saund.  188. 


OF  TRAVERSE.  393 

first  negative  forms  a  complete  issue  upon  the  plea,    CHAP. 
and  should  therefore  conclude  to  the  country.     The      vn. 

absque  hoc  is  unnecessary,  and  would  postpone  the  

issue,  until  the  rejoinder  is  given. 

§  32.  It  is  also  a  general  rule,  that  when  either  Jf*™™' 
party  alleges  new  matter,  inconsistent  with  a  preced-  cessary- 
ing  traversable  allegation  of  the  adverse  party,  but 
which  does  not  form  an  issue  upon  it,  the  new  mat- 
ter must  conclude  with  a  traverse(s).  For  in  such 
a  case,  it  is  apparent,  from  the  inconsistency  of  the 
adverse  allegations,  that  the  controversy  is  ripe  for 
an  issue.  If  therefore  the  last  pleader  were  allowed 
to  conclude  Avithout  a  traverse,  the  other  party 
might,  with  equal  propriety,  do  the  same  ;  and  the 
issue  might  thus  be  postponed  indefinitely.  If  there- 
fore a  defendant  pleads  that  his  co-defendant  is 
dead ;  and  the  plaintiff  replies  that  he  is  alive ;  the 
replication  must  add  '  absque  hoc  that  he  is  dead.' 
For  the  two  affirmative  allegations,  though  repug- 
nant to  each  other,  do  not  form  an  issue.  Thus 
also,  if  the  defendant  pleads  that  the  bond,  on  which, 
&c.  was  given  by  duress  ;  and  the  replication  al- 
leges that  he  executed  it  of  his  free  will;  there  must 
be  superadded  aformal  traverse  of  the  duress,  by  an 
absque  hoc,  or  et  non(^). 

(s)  Hob.  103.  1  Saund.  22.  &  n.  2.  207.  (n.  4.)  209.  (n.  8.) 
Corn.  Dig.  Pleader,  G.  2.  1  Wils.  253.  Lawes'  PI.  117-8. 
150.  3  Black.  Com.  310.  Bac.  Abr.  Pleas,  &c.  H.  1. 


(4)  The  omission  of  a  traverse,  when  necessary,  has  been  held 
to  be  matter  of  substance,  at  common  law.     (2  Mod.  GO.     Bac. 


394  OF  TRAVERSE. 

CHAP.        §  33.  But  to  the  above  general  rule,  there  is  an 

vii.     exception,  whenever,  in  answer  to  a  negative  plea, 

it  is  necessary  for  the  plaintiff  to  set  out  new  affir- 

When  not  .  •    77        •  i  7  i  • 

proper.  mative  matter  specially,  in  order  to  make  out  his  case 
in  full,  upon  the  face  of  the  pleadings.  In  such  a 
case,  the  plaintiff  cannot  conclude  with  a  traverse 
of  the  plea ;  although  his  new  matter  is  absolutely 
inconsistent  with  it.  For  if  he  should  thus  con- 
clude, the  real  ground  of  his  demand  could  not  ap- 
pear from  the  pleadings(tf).  Thus,  in  debt  on  an 
arbitration-bond,  if  the  defendant  pleads,  '  no  award"*, 
and  the  plaintiff  replies  that  the  arbitrators  '  did 
make  their  award' ;  he  cannot  conclude  this  allega- 
tion with  a  traverse,  tendering  an  issue  on  the  plea 
— though  the  allegation  is  directly  repugnant  to  it ; 
but  must  proceed  to  set  out  the  award,  and  assign  a 
breach — concluding  with  an  averment.  For  in  a 
case  like  this  (the  declaration  being  general}  the  true 
cause  of  action  never  appears,  until  the  replication 
discloses  it.  If  therefore  the  plaintiff  should  con- 
clude the  general  averment  of  an  award  made,  with  a 
traverse  or  tender  of  issue  ;  the  real  cause  of  action, 
(which  is  some  breach  of  the  award),  could  never  ap- 
pear from  the  pleadings.  To  a  plea  of  non  damnifi- 
catus  also,  it  is,  for  the  same  reason,  not  sufficient  for 
the  plaintiff  to  reply,  that  he  '  has  been  damnified. ,' 

(0  Hob.  233.     1  Salk.  138.     Lawes'  PI.  150.     6  East,  556- 
7.     Carth.  116.     1  Saund.  103.  (n.  1.)      2  Bos.  &  P.  362. 

Abr.  Pleas,  &c.  II.  2.)  Sed  quczre.  (Vid.  1  Leon.  43-4.) 
But  now,  under  the  statute  4  &  5  Ann.  c.  16.  it  is  but  matter 
of  form. 


OF  TRAVERSE.  395 

The  replication  must  show  what  particular  damage    CHAP. 
has  accrued(w),  and  conclude  with  an  averment.  vn. 

&  34.     But  when  a  party  merely  confesses  and  Not  proper, 

.  ,  ,          f,  .  ,  f  after  matter 

avoids  his  adversary's  allegations,  by  new  matter  or  of  confes- 

r      i  .  ,  sion  and 

his  own,  a  traverse  of  those  allegations  would  be  avoidance. 
improper  and  absurd  ;  since  it  would  be  repugnant 
to  the  pleader's  own  confession (V).  Ex.  gr.  The 
defendant  pleads  a  release ;  and  the  plaintiff  replies, 
that  it  was  given  by  duress :  Here  a  traverse  of  the 
release  itself  would  be  preposterous — as  it  would 
contradict  the  plaintiff 's  allegation  of  duress,  which 
admits  the  release.  Thus  also,  if  the  defendant 
pleads  infancy,  and  the  plaintiff  replies  necessaries, 
or  a  promise  after  full  age;  a  traverse  of  the  alle- 
gation of  infancy  would,  for  the  same  reason,  be  ill. 
In  cases  like  these,  the  matter  of  avoidance  should 
conclude  with  a  "verification,  and  without  a  tra- 
verse^). 

§  35.  It  is  said,  in  several  books(V),  principally,  it  inducement 
would  seem,  on  the  authority  of  a  remark  of  Lord  timeli^U. 
Hobart(y)(5),  that  a  special  traverse,  without  a  pro-  SU0] 

(«)  Bac.  Abr.  Pleas,  &c.  L.  2  Saund.  80.   1  Sid.  444. 

(»)  Com.  Dig.  Pleader,  G.  3.  Bac.  Abr.  Pleas,  &c.  H.  1.  1 
Brownl.  148.  197.  Sav.  2.  Winch,  38.  Cro.  Car.  384.  Yelv. 
151.  1  Saund.  22.  (n.  2.)  209.  (n.  8.)  13  Mass.  R.  520. 

(to)  lid.   1  Wils.  253.    3  Black.  Com.  309. 

(*)  Com.  Dig.  Pleader,  G.  20.  Lawes'  PI.  118. 

(y)  Hob.  321. 

(5)  Lord  Hobarl,  however,  lays  down  no  such  general  rule. 
His  remark  is  confined  to  the  particular  traverse,  then  in  ques- 


ative  preg- 
nant. 


OF  TRAVERSE. 


CHAP.  Per  inducement,  will  be  a  negative  pregnant.  But  the 
vii.  proposition,  thus  unqualified,  appears  to  be  much  too 
general,  and  is  likely  to  occasion  misapprehension. 
Undoubtedly  a  special  traverse  must  have  an  induce- 
ment, (and  of  course,  a  proper  one)  ;  for  an  induce- 
ment enters  into  the  definition  of  such  a  traverse  ; 
and  a  traverse,  without  an  inducement,  cannot  be  a 
special  one.  But  that  a  traverse,  in  any  form,  hav- 
ing no  inducement,  is  therefore  a  negative  pregnant, 
is  by  no  means  universally,  or  perhaps,  generally 
true.  It  is  indeed  certain,  that  in  various  instances, 
(as  in  that  to  which  Ld.  Hobart's  remark,  in  the 
above  reference,  applied),  a  traverse,  without  an  in- 
ducement, would  be  a  negative  pregnant,  when, 
with  a  proper  inducement,  limiting  its  extent  and 
application,  it  would  not  be  so  :  But  it  is  equally 
certain,  that  in  many,  perhaps  in  most  cases,  the 
absence  of  an  inducement  does  not  at  all  affect  the 
sufficiency  of  the  traverse  ;  and  that  an  inducement 
is  often  used  in  pleading,  when  wholly  unneces- 
sary. 

^  36.  These  remarks  may  be  illustrated  by  the 
following  examples  :  —  If  in  assault  and  battery,  the 
defendant  pleads  molliter  manus  imposuit,  in  virtue 
of  a  lawful  authority  to  arrest  the  plaintiff,  and  the 
plaintiff  replies  non  molliter  manus  imposuit,  without 
an  inducement  ;  the  replication  is  a  negative  preg- 
nant. For  it  is  consistent  with  the  supposition,  and 

tion,  and  which  was  a  negative  pregnant,  from  the  want  of  a  pro- 
per inducement. 


OF  TRAVERSE.  397 

therefore  admits,  by  implication,  that   the  defendant    CHAP. 
did  not  lay  his  hands  upon  the  plaintiff  at  all.     The      vii. 

plaintiff   should    therefore   reply  an  outrageous^  (or  

excessive)  battery,  absquc  fioc,  molliter  manus,  fcc.(z). 

^  37.  Again,  if  in  an  action  of  assault  and  bat- 
tery, brought  by  a  child  or  servant,  the  defendant 
pleads  moderate  castigavit,  in  virtue  of  his  au- 
thority as  parent  or  master  '  and  the  plaintiff  re- 
plies, 7ion  moderate  castigavit ;  the  replication  is  a 
negative  pregnant.  For  it  is  open  to  the  implication 
that  the  defendant  did  not  chastise  him  at  all(«). 
The  replication  should,  therefore,  begin  with  an 
inducement,  like  that  in  the  last  example,  and 
conclude  with  an  absque  hoc,  that  the  defendant 
moderately  chastised  the  plaintiff.  For  in  both 
these  cases,  as  in  all  others  of  the  same  kind,  the 
inducement,  taken  in  connexion  with  the  traverse, 
so  explains  and  limits  its  extent  and  meaning,  as  to 
exclude  the  objectionable  implication  or  admission. 
There  are  numerous  other  instances,  in  which  a 
proper  inducement  to  a  traverse  is  necessary,  for 
the  purpose  of  excluding  a  negative  pregnant(b)^ 


k)  38.     But,  as  has  been  already  observed,  there  in 

.  .  no 

are  also  very  many  cases,  in  which   a  traverse  needs  ry,  »> 
no   inducement,  for    this,   or   any   other    purpose(c). 
Such  is  always  the  case,  where  a  common  traverse 

(z)  Com.  Dig.  Pleader,  3  M.  16.     Skin.  387, 

(a)  2  Keb.  623.      1  Vent.  70. 

(6)   Bac.    Abr.  Picas,   &o.  I.  6.     Coin.  Dig.  Pleader*  R.  5. 

(c)    1  Sainul.  103.  b.  (n.  1.) 

51 


t, 

not  necessa« 


398  OF  TRAVERSE. 

CHAP.     'ls  a  proper  form  of  denial ;  and  this  form  is  often 
vn.      proper,  in  cases,  in  which   the  precedents  usually 

employ    an    inducement.       Thus,    if    a    defendant 

pleads  that  his  co-defendant  is  dead  ;  there  can  be 
no  doubt  that  the  plaintiff  may  safely  reply,  that  he 
is  not  dead — instead  of  alleging  that  he  is  alive, 
absque  hoc,  that  he  is  dead.  For  it  is  clear  that  the 
traverse,  in  the  form  first  stated,  contains  no  impli- 
cation, which  can  render  it  a  negative  pregnant. 
To  a  plea  of  usury,  also,  alleging  a  corrupt  agree- 
ment, in  the  usual  form,  a  replication  that  it  was 
not  corruptly  agreed,  &c.  (instead  of  the  usual  in- 
ducement of  a  '  good  and  lawful  consideration' 
with  an  absque  hoc,  &c.)  is  doubtless  good,  and  for 
the  same  reason(J). 

§  39.  But  without  accumulating  examples  of 
the  same  kind,  it  may  suffice  to  add,  that  whenever 
a  traverse  is  to  be  tendered,  the  pleader  has  only  to 
determine  for  himself,  whether,  without  an  induce- 
ment, it  would  be  a  negative  pregnant,  or  not,  (a 
point  easily  decided,  in  most  cases)  ;  and  then  to 
traverse,  with  or  without  it,  as  his  judgment  may 
direct. 


An  affirma-       &  40.     Whenever  a   traverse,  or  negative  allega- 

tive  implica-      .     •  .  .  ~,  ,. 

tion.not       tion  of  any  kind,  involves  an  affirmative  implication, 

aiding  the  .          .  71-  /•     ;  7 

adverse       which  does  not  maintain  the  pleading  oj  me  adverse 

party,  does  .  .     . 

not  vitiate,   party,    the    implication    does    not    injure    the    tra- 
verse^).    Thus,  if  a  plea  of  usury  alleges  a  corrupt 

(d)  2Stra.  871.      1  Saund.  103.  b.  (n.  1.) 

(«)   Com.  Dig.  Pleader,  R.  6.     Lawes'  PI.  114. 


OF  TRAVERSE.  399 

agreement  for  the  payment  of  ten  per  cent  for  for-    CHAP. 
bearance  ;    and  the  plaintiff  replies,  by  a  common      vn. 

traverse,  that  it  was  not  corruptly  agreed    that   he 

should  pay  ten  per  cent ;  the  traverse,  it  is  con- 
ceived, is  clearly  good — though  it  impliedly  admits 
a  reservation  of  nine,  or  any  other  per  cent,  not 
amounting  to  ten.  For  the  admission  does  not  main- 
tain the  plea,  which  must  be  proved  precisely,  to  de- 
feat the  action.  And  it  is  very  obvious,  that  no  im- 
plication, on  one  side,  which  does  not  aid  the  other, 
can  injure  any  traverse,  or  other  pleading. 

§  41.  *  An  issue,  joined  upon  an  absque  hoc,  &c.  jf0nc/^bussqtue 
ought  to  have  an  affirmative  after  it'(/)  :    In  other  £°  f°J°^_ 
words,  no  other  than  an  affirmative  allegation  can  be  mative- 
properly  traversed  with  an  absque  hoc.      For   if   a 
negative  be  thus  denied,  the  traverse  will  consist  of 
tivo  negatives ;  and  though  these  amount,  in  English, 
to  an  affirmative  ;  yet  such  a  mode  of  expressing  an 
affirmative  tends  to  confusion  and  perplexity,  and  is 
therefore,  in  point  of  form,  not  allowable  in  pleading. 
Ex.  gr.  If  the  defendant  pleads  that  the  plaintiff  did 
not   deliver  such  a   certain  writing ;    a  replication, 
*  absque  hoc  that  he  did  not  deliver,'  &c.  is  the  same 
thing,  in  effect,  as  saying  '  he  did  not  deliver.'     A 
negative  allegation,  then,  can  be  properly  traversed, 
only  by  an  affirmative(§). 

(/)  Co.  Litt.  126.  a.  Bac.  Abr.  Pleas,  &c.  H.  1.  1  Chitt.  PI. 
687. 

(6)   It  may  be  added,  that  when  negative  matter  is  to  be  con- 
tradicted by  an  affirmative,  the  latter  generally  advances  such  new 


OF  TRAVERSE. 


CHAP.         §  4*2.   It   is   a  general   rule,  that   a   traverse,  well 
vii.      tendered  on  one  side,  must  be  accepted  on  the  oth- 
r(g).       And   hence    it   follows,   as  a  general   rule, 


upon  a       that  there  cannot  be  a  traverse  upon  a  traverse,  if 
generally      the  first  traverse  is  m«tfm"«/(/i)(7).      The  meaning 

not  allowed.       ,,      .  .  ,  , 

of  this  rule  is,  that  when  one  party  has  tendered  a 
material  traverse,  the  other  cannot  leave  it,  and  ten- 
der another  traverse  of  his  own,  to  the  same  point  , 
upon  the  inducement  to  the  first  traverse,  but  must 
join  in  that  first  tendered  :  Otherwise  the  parties 
might  alternately  tender  traverses  to  each  other,  in 
unlimited  succession,  without  coming  to  an  issue. 
Ex.  gr.  The  defendant  pleads  title,  under  a  devise 
from  J.  S.  alleging  that  he  died  seised  in  fee  :  The 
plaintiff  replies,  that  '  J.  S.  died  seised  in  tail,  absque 
hoc,  that  he  died  seised  in  fee',  with  a  verification  : 
The  defendant  cannot  now  rejoin  that  J.  S.  died 
seised  in  fee,  absque  hoc  that  he  died  seised  in  tail  ; 
but  must  join  in  the  plaintiff's  traverse,  by  re-affirm- 
ing that  J.  S.  died  seised  in  fee,  as  alleged  in  the  plea, 
and  conclude  to  the  country.  For  both  traverses 

(o-)  Gilb.  H.  C.  P.  66.  Hob.  104.  Bac.  Abr.  Pleas,  &c.  H.  4. 

(h)  Hob.  104.  Bac.  Abr.  Pleas,  &c.  H.  4.  1  H.  Black.  403.  1 
Anst.  231.  1  Saund.  22.  (n.  2.)  Co.  Litt.  282.  1  Salk.  222.  1 
Ld.  Ray.  121.  Com.  Dig.  Pleader,  G.  17.  Vaugh.  62. 

matter,  as  must  be  left  open,  to  be  answered  by  the  adverse  party, 
(2  Lev.  5.  1  Vent.  121.  2  Burr.  772)  —  in  which  case,  the 
following  up  of  the  new  matter  with  a  traverse,  would  be  mani- 
festly inadmissible. 

(7)  A  traverse  upon  a  traverse  is  one  going  to  the  same  point 
(or  subject-matter)  as  is  embraced  in  a  preceding  traverse,  on  the 
other  side. 


OF  TRAVERSE.  40] 

would  go  to  the  same  point,  viz.   whether  or  not    CHAP. 
J.  S.  died  seised  in  fee — the  only  material  point  in      vn. 

controversy,  and   to   the  determination  of  which  the  

first  traverse  is  precisely  adapted.  If  the  defend- 
ant, then,  might  traverse  the  plaintiff's  inducement, 
(the  alleged  seisin  in  tail)  ;  the  plaintiff  might,  on 
the  same  principle,  traverse  that  of  the  defendant, 
as  at  first,  with  a  verification ;  and  if  this  might  be 
once  done  by  either  party,  it  might  be  repeated  on 
both  sides,  to  any  indefinite  extent,  without  produc- 
ing an  issue. 

^  43.  But  the  above  general  rule  does  not  ex-  Traverse 
tend  to  cases,  in  which  the  traverse  first  tendered  is  traverse, 
immaterial.  In  such  a  case,  there  may  be  a  traverse  eV.611 
upon  a  traverse — i.  e.  the  traverse  first  tendered 
may  be  passed  over,  and  the  inducement  to  it,  if  ma- 
terial, may  be  traversed ;  although  both  traverses 
go  to  the  same  point(i).  Thus,  in  an  action  of 
waste  for  felling  timber-trees,  the  plaintiff  declares, 
that  the  defendant,  (the  lessee),  felled  and  sold 
them :  The  defendant,  confessing  that  he  felled 
them,  justifies  that  act,  by  pleading  that  he  bestow- 
ed them  in  repairing  the  demised  buildings,  absque 
hoc,  that  he  sold  them.  Now  the  plaintiff  may  re- 
fuse to  join  in  the  traverse  tendered  upon  the  sale 
of  the  trees — because  that  point  is  immaterial ;  and 
may  himself  traverse  the  inducement  to  the  defend- 

(t)   Hob.   104.    &   Williams'  note  (1).  Co.   Litt.    282.  b.      1 

Saund.  20.  22.  (n.  2.)     1  Ld.  Ray.  125.  Bac.   Abr.  Pleas,  &c. 

H.  4.     1    H.   Black.   376.  406.     Com.  Dig.   Pleader,   G.    19. 
Vaugh.  62.     1  Anst.  231. 


402  OF  TRAVERSE. 

CHAP.  ant's  traverse,  viz.  the  alleged  repairing ;  for  this  is 
viz.  the  only  material  point  in  the  plea.  Both  the 
traverses  here  go  to  the  same  point,  viz.  the  use  or 
disposition  made  of  the  trees,  when  felled  ;  upon 
which  point  the  justification  depends.  Instead  of 
answering  the  plea  at  all,  however,  the  plaintiff 
might  specially  demur  to  it,  for  the  immateriality  of 
the  defendant's  traverse(&). 

^  44.  And  there  is  one  class  of  cases,  in  which 
there  may  be  a  traverse  upon  a  traverse,  although 
the  first  traverse  includes  what  is  material.  The 
cases,  here  referred  to,  are  those  in  which  false 
pleading,  on  the  part  of  the  defendant,  might  other- 
wise oust  the  plaintiff  of  some  right  or  liberty,  which 
the  law  allows  him(7).  Ex.  gr.  To  an  action  of 
assault  and  battery  and  false  imprisonment,  laid  in 
the  county  of  A.,  the  defendant  pleads  a  local  justi- 
fication, in  the  county  of  B.,  viz.  that  he  was  sheriff 
of  the  latter  county,  and  arrested  the  plaintiff  there, 
under  a  capias,  (or  other  lawful  authority),  absque 
hoc,  that  he  is  guilty  in  the  county  of  A.,  &c.  Now 
as  the  defendant's  alleged  authority,  which  is  the 
inducement  to  the  traverse,  may  be  false  ;  the  plain- 
tiff, instead  of  joining  in  the  traverse,  may  traverse 
that  authority.  For,  assuming  that  the  alleged  tres- 
pass was  actually  committed  in  the  county  of  B. — 
still,  (the  action  being  transitory),  the  plaintiff  has 
by  law  a  right  to  sue  and  recover  for  it,  in  any  other 

(k]  Hob.  104.  Cro.  Jac.  221.  1  Saund.  21.  (n.  1.)  22.  (n. 
2.)  Yelv.  151. 

(/)  Poph.  101.  Mo.  350.  Com.  Dig.  Pleader,  G.  18.  Bac. 
Abr.  Pleas,  &c.  H.  4.  Hob.  104,  marg.  Cro.  Eliz.  99.  418. 


OF  TRAVERSE. 

county.     But  if  he  were  obliged  to  join  in  the  de-    CHAP. 
fendant's  traverse,  by  re-affirming  that  the  defendant     vn. 

committed  the  trespasses  in   the  county  of  A. ;  the 

plaintiff  would  necessarily  fail  on  that  issue — al- 
though he  has,  by  the  supposition,  a  right  by  law  to 
recover  in  that  county.  And  thus  the  plaintiff  would, 
by  the  falsity  of  the  defendant's  justification,  be  de- 
prived of  the  liberty,  which  the  law  allows  him,  of 
laying  his  action  in  what  county  he  pleases,  in  a 
transitory  action.  On  the  other  hand,  if  the  de- 
fendant's justification  be  true ;  the  traverse  taken 
upon  it  can  subject  him  to  no  disadvantage  :  Since 
by  proving  it  true,  he  must  prevail,  upon  the  issue. 
The  object  of  the  rule,  in  cases  like  the  above,  is  to 
prevent  the  defendant,  in  a  transitory  action,  from 
ousting  the  plaintiff's  venue,  by  false  pleading. 

^  45.  A  traverse  after  a  traverse — i.  e.   one  go-  Traverse 

7  •  /y.  •  -i  •  r-  after  a 

ing  to  a  different  point  or  subject-matter,  from  that  traverse, 

,.  .        allowable. 

embraced  in  a  preceding  traverse,  on  the  opposite 
side — is  allowed,  even  though  that  first  tendered 
be  material(m).  Thus  if  in  trespass,  the  defendant  Ante,  CH.  e, 
pleads  a  justification  on  a  particular  day,  with  a 
traverse  that  he  is  guilty  on  any  other  day  ;  the 
plaintiff,  instead  of  joining  in  the  traverse,  by  alleg- 
ing a  trespass  within  the  time  embraced  in  it — may 
pass  by  the  defendant's  traverse,  and  traverse  the 
matter  of  justification ;  in  which  case,  the  traverse 
in  the  replication  will  be  a  traverse  after  a  traverse ; 

(m)  Hob.  104.    Bac.  Abr.  Pleas,  &c.  H.  4.    Co.  Litt.  282.  b. 
1  Saund.  21.  22-3.  Com.  Dig.  Pleader,  G.  18. 


404  OF  TRAVERSE. 

CHAP.    since  it  does  not  embrace  the  same  point,  as  is  em- 
vn.      braced   in   the   first   traverse.       For    the    plaintiff's 

traverse  applies  only  to  the  trespass  justified,  which 

is  a  supposed  trespass,  on  the  particular  day  laid  in 
the  justification :  Whereas  the  traverse  in  the  plea 
extends  only  to  a  trespass  on  any  different  day.  The 
reason,  for  allowing  the  plaintiff  to  traverse,  in  this 
manner,  is,  that  the  day,  mentioned  in  the  justifica- 
tion, may  have  been  the  day  of  the  trespass  com- 
plained of;  and  yet  the  justification  may  be  false  : 
Upon  which  supposition,  if  the  plaintiff  were  not 
permitted  to  deny  the  justification,  he  would  neces- 
sarily be  defeated  of  a  recovery — though  having  a 
complete  right  of  action :  For,  by  the  same  suppo- 
sition, he  would  not  be  able  to  prove  the  trespass  on 
a  different  day. 

^  46.  When  the  right  of  recovery,  as  alleged  in 
the  declaration,  is  in  its  nature  divisible,  so  that  the 
plaintiff  is  by  law  entitled  to  recover  for  as  much  as 
he  can  prove  title  to,  (though  it  should  be  less  than 
he  declares  for),  the  defendant  cannot  make  that 
part  of  his  plea,  which  is  in  answer  to  a  part  of  the 
plaintiff's  demand,  the  inducement  to  a  traverse  of  the 
residue(n).  Ex.  gr.  in  an  action  for  obstructing 
three  of  the  plaintiff's  lights,  the  defendant  cannot 
justify  as  to  one  of  them,  with  an  absque  hoc,  that  he 
obstructed  three.  For  the  plaintiff,  in  the  case  sup- 
posed, is  by  law  entitled  to  recover  for  the  obstruction 

(n)  1  Saund.  267 — 9.  Com.  Dig.  Pleader,  G.  20.  Lawes' 
PL  118.  Yelv.  225.  1  Bulstr.  116.  Vid.  8  Taunt.  190.  9  Pick. 
66.  Steph.  PL  259. 


Of  TRAVERSE. 

of  two,  or  of  one  only,  if  his  proof  goes  no  fur-  CHAP. 
ther.  Hence,  even  assuming  that  the  justification  vii. 
pleaded  is  true,  and  also  that  only  two  lights  were 
obstructed  ;  yet  the  plea  is  ill.  For  if  the  plaintiff 
should  join  in  the  traverse,  by  re-affirming  the  ob- 
struction of  three  lights,  he  would  fail,  on  the  trial, 
unless  he  could  prove  three  lights  obstructed  — 
which,  upon  the  state  of  facts  now  supposed,  he 
could  not  do.  And  thus  his  action  would  be  de- 
feated, though  he  is,  by  the  supposition,  legally  en- 
titled to  recover  for  the  obstruction  of  one  light.  In 
all  cases  like  this,  if  the  traverse  were  good,  (upon 
which  supposition,  the  plaintiff'  must  join  in  it),  it 
would  oblige  him  to  prove  the  whole  gravamen  al- 
leged, in  order  to  maintain  his  action  ;  although  the 
law  confessedly  entitles  him  to  recover,  on  proof  of 
any  part  of  it.  In  the  case  here  supposed,  then,  the 
defendant  ought  to  plead,  as  to  the  part  not  justified, 
i.  e.  two  of  the  lights,  not  guilty  ;  and  as  to  the  remain- 
ing one,  to  plead  specially  his  matter  of  avoidance. 


§  47.  A  traverse  can  properly  be  tendered,  only  Must  b 
on  a  point  inaterial(o)  —  for  the  obvious  reason, 
that  what  is  immaterial  cannot  decide  the  contro- 
versy. Hence  matter  of  mere  inducement  or  aggra- 
vation cannot,  regularly,  be  traversed.  Hence  also, 
if  a  traverse  includes  time  or  place,  when  not  mate- 
rial ;  it  is  i 


e  on 

' 


(o)  Com.  Dig.  Pleader,  E.  34.  G.  12.  14.  Bac.  Abr.  Pleas, 
&c.  H.  1.  6  Co.  24.  a.  Lawes'  PI.  118.  2  Saund.  5.  28.  1 
Ib.  23.  (n.  5.) 

(p)  Com.  Dig.  Pleader,  G.^12.  14.  R.  7.  8.  9.  2  Saund.  318. 
12  Mod.  507. 

52 


OF  TRAVERSE. 

CHAP.  §  48.  So  also  a  traverse  can  properly  be  tender- 
vii.  ed  only  on  an  issuable  point(<?).  For  what  is  not 
issuable  cannot  be  put  in  issue  ;  and  therefore  mat- 
ter  of  law  cannot  be  traversed(r)  :  Matter  of  fact, 
only,  being  traversable.  Upon  this  principle,  the 
prout  ei  bene  licuit,  (*  as  by  law  he  well  might'')  in  a 
plea  of  justification,  is  not  traversable :  As  where 
the  defendant  pleads  son  assault  demesne,  and  con- 
fesses his  forcibly  defending  himself,  as  he  lawfully 
might,  &c.  For  these  \vords  are  but  a  conclusion  of 
law  from  the  facts  stated  (V). 

And  on  a         ^  49.     Every  traverse  must  be  confined  to  a  sin- 

single  point.  •>  <* 

gle  point,  i.  e.  a  single  ground  of  demand,  or  defence  : 
Otherwise  it  will  be  objectionable,  as  being  dou- 
ble(f).  The  meaning  of  the  rule  is,  that  when  the 
pleading,  on  one  side,  consists  of  several  distinct 
and  material  points,  all  of  which  are  necessary  to 
its  legal  sufficiency,  the  adverse  party  is  allowed  to 
traverse  only  one  of  them.  For  in  every  such  case, 
a  denial  of  one  of  them  is,  in  law,  a  sufficient  answer 
to  the  whole  ;  and  he  may  traverse  which  of  them 
he  pleases(w). 

(5)  Com.  Dig.  Pleader,  E.  34.     Bac.  Abr.  Pleas,  &c.  H.  1. 

(r)  lid.  Com.  Dig.  Pleader,  G.  12.  14.  1  Saund.  23.  (n. 
5.)  298.  (n.  3.)  11  Co.  10.  2  Black.  Rep.  776.  3  Wils.  234.  2 
Keb.  607. 

(*)  lid. 

(0  Bac.  Abr.  Pleas,  &c.  H.  1.  5.  8  Co.  67.  Co.  Litt.  126. 
a.  1  Burr.  316.  321.  3  Lev.  40.  1  Bos.  &  P.  80.  Lavves' 
PL  48.  152.  Bull.  N.  P.  93. 

(«)  1  Saund.  22.  (n.  2.)  6  Co.  24.  b.  1  Wils.  338.  Vid. 
Duplicity,  post.  ch.  8. 

V 


OF  TRAVERSE.  4Q7 

§  50.  If  therefore,  in  trespass  for  false  imprison-  CHAP. 
ment,  the  defendant  justifies  under  a  capias  directed  vn. 
to  the  sheriff,  and  a  warrant  from  the  sheriff  to  him- 
.  self,  the  plaintiff  may  traverse  either  the  capias,  or 
the  warrant,  but  should  not  traverse  both.  For  the 
denial  of  either  of  them  is  a  sufficient  answer  to  the 
plea;  since  the  capias,  without  the  warrant,  or  the 
warrant,  without  the  capias,  would  be  no  justifica- 
tion :  And  a  traverse  of  both  would,  in  effect,  ten- 
der two  issues  instead  of  one,  upon  one  and  the  same 
plea.  Upon  the  same  principle,  if  the  defendant 
pleads  title  in  a  stranger,  and  justifies  as  servant  to 
the  latter,  and  by  his  command ;  the  plaintiff  may 
traverse  the  title,  or  the  command ;  but  should  not 
traverse  both(v). 

§  51.  But  it  is  not  indispensable,  that  the  'sin- 
gle point,'  mentioned  in  the  above  rule,  consist  of  a 
single  fact :  Since  two  or  more  distinct  facts  may 
be,  and  often  are,  necessary  to  constitute  one  com- 
plete point  or  ground  of  complaint,  or  defence  ;  and 
in  such  a  case,  all  the  particular  facts,  which  go  to 
that  one  point,  may  be  traversed(ty).  Ex.  gr.  To 
an  action  of  trespass,  for  breaking  and  entering  the 
plaintiff's  close,  and  depasturing  it  with  beasts,  &c. 
the  defendant  justified  the  depasturing,  &c.  under  a 
prescriptive  right  of  common  in  the  locus  in  quo,  and 
alleged,  according  to  the  established  form  of  plead- 
ing in  such  a  case,  that  'the  cattle  were  his  own 
cattle,  and  that  they  were  levant  and  couchant  upon 

(v)  8  Co.  67.  b. 

(M>)  Bac.  Abr.  Pleas,  &c.  II.  1.   1  Burr.  320.  Lawes'  PI.  153. 

rv    • 


OF  TRAVERSE. 


CHAP  tne  Premises»  a°d  were  commonable  cattle,'  (i.  e.  oi' 
vii.  the  species  of  cattle,  called  commonable)  :  The 
plaintiff  traversed  the  whole  of  the  last  allegation,  in 
the  terms  of  it  —  thus  including  in  the  traverse  the 
three  distinct  facts,  that  the  cattle  were  the  defend- 
ant's own  cattle  —  that  they  were  levant  and  couch- 
ant  —  and  that  they  were  commonable  ;  and  on  a 
special  demurrer  to  this  replication,  for  duplicity,  the 
traverse  was  held  good(x). 

^  52.  Of  this  case  it  may  be  observed,  that  the 
defence,  to  which  the  traverse  applied,  consisted  of 
three  distinct  points  :  —  1  .  The  existence  of  a  pre- 
scriptive right  of  common  —  2.  the  defendant's  title 
to  share  in  that  right,  as  tenant  of  the  manor,  or 
lordship  —  3.  that  the  particular  beasts  in  question 
were  entitled  to  common.  The  replication  applied  to 
the  last  point  only,  viz.  that  the  beasts  were  entitled 
to  common.  But  to  entitle  them  to  common,  in  the 
defendant's  right,  they  must  have  been,  as  alleged 
in  the  plea,  his  own  cattle  —  and  also  levant  and 

couchant  on  his  tenement  —  and  commonable   cattle. 
i 

These  three  last  facts,  therefore,  the  plaintiff  pre- 
cisely traversed  ;  and  the  court  held  that  the  tra- 
verse was  not  double  —  inasmach  as  it  embraced 
only  the  simple  point,  that  the  cattle  were  entitled  to 
common. 


Must  be  ^  53.  In  general,  nothing  but  what  is  expressly 

matte°n       alleged,  or  necessarily  implied  in  what  is  thus  alleged, 

alleged,  or 
implied  in 

r^ecL  (JO    1  Burr.  316—322. 


OF  TRAVERSE.  4QQ 

can  be   the  subject  of  a  traverse(?/).     For  a  traverse    CHAP. 
is   in  its  nature  a  denial,  on  one   side,  of  something      vii. 

before  alleged,  on  the  other.     It  would,  indeed,  be 

plainly  absurd  for  either  party  to  tender  an  issue 
upon  matter,  which  the  other  had  not  actually,  or 
virtually,  pleaded.  Still,  a  traverse  may  be  taken 
upon  matter  which,  though  not  in  terms  alleged,  is 
necessarily  implied  in  what  is  so  alleged^).  Thus, 
if  the  defendant  justifies  under  J.  S.,  alleging  that 
he  ivas  seised  of  the  close  in  question ;  the  plaintiff 
may  reply  that  he  himself  was  seised  of  one  moiety 
of  the  close,  absque  hoc  that  J.  S.  was  sole  seised(a). 
For  though  the  plea  does  not  expressly  aver  that 
J.  S.  was  solely  seised  ;  yet  the  general  unqualified 
averment,  that  he  was  seised  '  of  the  close\  must  be 
understood  to  mean  a  seisin  of  the  whole,  or  a  sole 
seisin. 

§  54.     But    there    is    one    case,  in  which    it    is  Exception 

i      -i        •  .   ,          to  the  last 

necessary  to  include,  m  a  traverse,  what  is  neither  rule. 
expressly  nor  impliedly  alleged  on  the  other  side : 
viz.  when  to  debt  on  an  obligation,  payable  '  on  or 
before'  a  certain  day,  (as  the  tenth  day  of  May),  the 
defendant  pleads  payment,  on  a  day  before  that 
named  m  the  condition,  (as  the  first  day  of  the  same 
month)  :  In  which  case,  if  the  plaintiff  would  deny 
the  plea,  he  must  reply  that  the  defendant  did  not 

(j/)  Com.  Dig.  Pleader,  G.  8.  13.  1  Ld.  Ray.  63.  1  Saund. 
206.  312.  d.  (n.  4.)  2  Ib.  10.  (n.  14.)  1  Salk.  298.  Carth. 
99.  Bac.  Abr.  Pleas,  &c.  H.  1.  5. 

(*)  lid. 

(a)  6  Mod.  158.     2  Salk.  629.     Com.  Dig.  Pleader,  G.  13. 


OF  TRAVERSE. 

CHAP.    pay  Oil  tne  first  of  May,  nor  at  any  time  before  the 
VH.      tenth,  nor  <w  the  tenth(6).     For  a   traverse  of  pay- 

ment  on  the  first  of  May,  without  more,  would  not 

vide  ch.  10,  show  an  absolute  breach  of  the  condition  of  the  bond, 
(which  the  replication  must  always  show,  when  the 
defendant  pleads  performance  of  the  condition),  and 
consequently  would  not  show  a  right  of  recovery. 
For  such  a  traverse  would  be  consistent  with  the 
supposed  fact  of  payment  on  the  tenth,  or  on  any 
previous  day,  except  the  first ;  and  payment,  on 
either  day,  would  be  a  strict  performance  of  the 
condition.  And  now,  since  the  statute  4  &  5  Ann. 
ch.  16,  §  12,  has  made  payment  after  the  day  a  good 
defence,  the  traverse,  it  seems,  should  cover  all 
time  subsequent  to  the  day  named  in  the  condition, 
and  before  the  commencement  of  the  suit(c). 


When 


joining  m  §  &&•  It  has  already  been  seen  (ante,  §§  14.  15.), 
fs  aYeen7ai'  tnat  when  a  traverse  and  its  inducement  both  go  to 
duceme'nt".  the  same  point,  and  are  properly  adapted  to  each 
other,  the  traverse  is  but  an  inference  from  the 
inducement ;  and  hence  it  follows,  that  in  every 
such  case,  joining  in  the  traverse  necessarily  involves 
a  denial  of  the  matter  alleged  in  the  inducement. 
Thus,  if  the  defendant  pleads  that  J.  S.  died  seised 
in  fee,  and  the  plaintiff  replies  that  he  died  seised 
in  tail,  absque  hoc  that  he  died  seised  in  fee ;  a 
rejoinder,  re-affirming  that  he  died  seised  in  fee,  is 

(6)  Sav.  96.     1  Black.  Rep.  210.     Com.  R.  148.     Esp.  Dig. 
225.     2  Burr.  944. 
(c)   2  Burr.  944. 


*> 


OF  TRAVERSE.  41 1 

self-evidently   a  denial   of    the   inducement   to   the    CHAP. 

VTT 

traverse. 


§  56.  On  the  other  hand,  when  the  inducement 
and  the  traverse  go  to  different  points,  (as  in  the  ieL'nt 
case  of  a  traverse  after  a  traverse,  ante,  §  45), 
joining  in  the  traverse,  first  tendered,  admits  the 
truth  of  the  inducement.  Thus,  if  the  defendant  in 
trespass  pleads  a  justification,  (as  a  license),  laid 
on  some  particular  day,  different  from  that  laid  in 
the  declaration,  and  traverses  that  he  is  guilty  on 
any  other  day  ;  a  replication,  joining  in  the  traverse, 
by  alleging  a  trespass  on  another  day  than  that  laid 
in  the  plea,  is  an  implied  admission  of  the  license, 
or  other  matter  of  justification  averred  in  the  in- 
ducement :  It  being  a  general  principle,  heretofore 
stated,  that  each  party  impliedly  admits  all  such 
traversable  allegations  on  the  other  side,  as  he  does 
not  traverse,  (ante,  ch.  3,  ^  166).  And  in  the  ex- 
ample now  given,  the  plaintiff,  instead  of  joining  in 
the  traverse,  might  have  traversed  the  inducement. 
It  may  also  be  observed,  that  in  the  case  just  sup- 
posed, (as  in  every  similar  case),  if  the  replication 
is  true,  and  supported  in  proof;  the  plaintiff  can 
suffer  no  disadvantage,  from  his  admission  of  the 
inducement,  even  though  the  latter  should  be  untrue  ; 
because,  even  upon  this  supposition,  he  must  prevail, 
on  the  issue  tendered  by  the  defendant. 


§  57.  If   however  the  party,  joining   in   such   a 
traverse,  wishes  to  prevent  his  implied  admission  of  and  use  of> 
the  inducement  from  operating  against  him,  as  an 


412  OF  TRAVERSE. 

CHAP,    estoppel  in  any  future  controversy ;  he   may  attain 
vii.      that  end,  by  a  protestation,  or,  (as  it  is  often  called) 
a  protestando ;  and  in  general,  any  allegation  or  in- 
ference, which    stands  impliedly   admitted     by  the 
pleadings,  may,  to  the  same  effect,  be  denied  or  ex- 
cluded, in  the  same  manner(^). 

^  58.  A  protestation,  which,  according  to  Sir 
Edward  Coke's  definition,  is  '  the  exclusion  of  a 
conclusion',  has  no  other  effect,  than  that  of  exclud- 
ing or  preventing  some  adverse  allegation,  or  infer- 
ence, (which  stands  confessed  by  the  pleadings), 
from  estopping  the  party  protesting,  in  any  other  suit 
between  the  same  parties,  or  their  privies(e).  For  it. 
is  a  general  principle,  in  the  law  of  evidence,  that 
any  fact,  admitted  by  the  pleadings  in  a  suit,  will, 
if  not  thus  excluded,  be  forever  conclusive,  (between 
the  same  parties,  and  those  in  privity  with  them),  in 
any  other  suit,  in  which  the  same  fact  may  come  in 
question. 

^  59.  Thus,  if  the  defendant  pleads  in  bar  a 
collateral  satisfaction — as  a  pipe  of  wine — deliv- 
ered to  the  plaintiff,  and  by  him  accepted,  in  full 
satisfaction  ;  and  the  plaintiff,  wishing  to  put  the 
acceptance  only  in  issue,  is  nevertheless  unwilling  to 
let  the  fact  of  delivery  stand,  as  an  estoppel  to  him 

(d)  3  Black.  Com.  311.     fiac.  Abr.  Pleas,  &c.  H.  1.  4.    Co. 
Lilt.  124.  b.  126.      Plowd.  276.  b.      2  Saund.  103.  a.  b.  (n.  1.) 
Litt.  §  192-3. 

(e)  lid.  2  Saund.  103,  a.  (n.  1.)   Lawes'  PI.  141.  143.  Com. 
Dig.  Pleader,  N. 


OF  TRAVERSE. 


in  any  other  case  ;   he  may  deny  the  delivery,  by  a    CHAP. 
protestation,  and  then,    'for  replication',  traverse   the      vn. 
acceptance^).     And  in  general,  when  on  one  side,  - 
two  material  facts  are  pleaded,  of  which  the  opposite 
party  can  traverse  but  one,  without  making  his  plead- 
ing double,  he  may  exclude  the  other,  to  the   intent 
above  explained,  by  a  protestation(g). 

&  60.    A  protestation  is,   strictly,  no  part  of  the  is  no  part 

7        J-  J    •        T       •  •    i         I    /•  i  •       •         r  ofthc 

pleadings,  and  is  distinguished  from  them  in  its  form,  pleadings. 
by  always  commencing  with  the  word,  '  protesting,' 
or  in  Latin,  ^  protest  and  o^h).  It  has  therefore  no 
effect  whatever,  in  the  principal  case,  the  legal  merits 
of  which  are,  upon  the  face  of  the  record,  precisely 
the  same  as  if  the  protestation  were  omitted.  In- 
deed all  traversable  facts,  which  are  denied  under  a 
protestation,  are,  for  the  purpose  of  deciding  the 
principal  cause,  admitted(i).  Thus,  in  the  case  last 
stated,  the  delivery  of  the  wine,  which  the  protesta- 
tion denies,  stands  upon  the  face  of  the  record,  (so 
far  as  regards  that  case),  as  confessed. 

5}  61.    From    these    principles   it  follows,   that  a  Re(iuires* 

no  answer. 

protestation  requires  no  answer  ;  and  that  the  facts, 
denied  or  excluded  by  it,  require  no  proof(k). 
Hence  it  also  follows,  that  a  protestation,  which  is 
idle  or  superfluous,  or  even  repugnant  to  the  pleading, 

« 

(/)  2  Chitt.  PI.  602.  644-5.      1  Lill.  Ent.  105.  106. 
(g)   2  Chitt.  PI.  602.  * 

(A)    Lawes'  PI.  141.     2  Chitt.  PI.  602.     2  T.  R,  441. 
(i)   Bac.   Abr.  Pleas,  &c.  H.  4.      Lawes'  PI.  141-3. 
(A;)  Com.  Dig.  Pleader,  N.    B;-c.  Abr.  Pleas,  &c.  II.  4.   Lawes' 
PI.  143. 

53 

* 


OF  TRAVERSE. 

CHAP,    with   which    it   is   connected,    does   not   injure  the 
vii.      pleading,    even   on  special   demurrer(7)  ;    since    the 
protestation  forms  no  part  of  the  pleading.     Such  a 
protestation  is,  however,   of  no  avail,   and   cannot, 
therefore,  exclude  an  estoppel(m)'. 

§  62.  And  it  seems,  that  in  general,  a  protesta- 
tion does  not  avail  the  party  protesting,  if  the  issue 
be  found  against  him(?i)  :  The  reason  of  which  may 
perhaps  be,  that  as  his  pleading  is  found  to  be  false  ; 
the  protestation  is,  therefore,  presumed  to  be  so. 
This  rule,  however,  appears  to  apply  only  to  those 
cases,  in  which  the  facts  protested  against  might  have 
been  directly  traversed(o).  When  the  issue  is  found 
in  favor  of  the  party  protesting,  the  protestation 
has  its  full  intended  effect,  as  above  explained^). 
It  is  also  observable,  that  a  protestation  is  the  only 
mode  of  denying  such  facts,  as  cannot  be  put  in 
issue(q). 

ont         %  63.     The  inducement  to  a  traverse  must  consist 
°£     °f   issuable  matter — whether    the  inducement   and 
mat-  traverse  go  to  one  and  the  same  point,  or  to  different 
pomts(r).     The   correctness  of  this  rule    has    been 

(/)   Com.  Dig.  Pleader,  N.     Plowd.  276.  b.      Lanes'  PI.  142. 

(f»)  lid. 

(n)  Co.Litt.  124.  b.  126.  a.  Com.  Dig.  Pleadcr,~N.  2  Saund. 
103.  a.  b.  (n.  1.)  Lawes'  PI.  142. 

(o)  2  Saund.  103.  a.  b.  (n.  1.) 

(p)  2  Saund.  103.  c.(n.  1.) 

(q)  Plowd.  276.  b.     Lawes'  PI.  141. 

(r)  Bac.  Abr.  Pleas,  &c.  H.  1.  Com.  Dig.  Pleader,  G.  20. 
Cro.  Car.  336.  3  Salk.  353.  2  Leon.  32. 


\ 


OF  TRAVERSE.  415 

questioned,  as  it  regards  cases,  in  which  the   induce-    CHAP. 
ment   and    traverse    both   go  to  the  same  point(s).      vn. 
For  as  the  party,  to  whom  such    a  traverse  is  ten-  — — — 
dered,  must  (regularly)  join  in  it,  (if  material),  and 
cannot  traverse   the  inducement(6)  ;     why,   it  may 
be  asked,  is  it  necessary  that  the  inducement  should 
consist  of  issuable  matter  ?  It  will  appear,  however, 
upon   examination,   that  the   rule   is   founded     upon 
sound  principle.     For 

^  64.  1.  When  the  inducement  and  the  traverse  Reasons  of 
go  to  the  same  point,  they  cannot,  in  the  nature  of  rufc." 
the  thing,  be  properly  adapted  to  each  other,  unless 
the  traverse  follows,  as  a  necessary  inference,  from 
the  inducement  (ante,  ^  14)  ;  so  that  if  either  of 
them  is  true,  the  other  must  necessarily  be  so.  In- 
deed, the  inducement  and  the  traverse,  when  thus 
adapted  to  each  other,  (as  they  must  be,  in  order  to 
be  secure  against  a  demurrer),  assert  substantially 
the  same  thing,  though  in  different  forms — the  one 
being  in  the  affirmative,  and  the  other  in  the  nega- 
tive. It  is  clear,  therefore,  when  they  are  thus 
adapted  to  each  other,  that  if  the  traverse  consists  of 
issuable  matter,  as  it  confessedly  must ;  the  induce- 
ment will,  and '  must  of  necessity,  consist  of  similar 
matter,  or  ratker  of  the  same  matter,  differently  ex- 
pressed. 

(s)   Bac.  Abr.  Pleas,  &c.  H.  1.  in  notis. 

(6)  Because  a  traverse  of  the  inducement  would  be  a  traverse 
upon  a  traverse,  (ante,  §  42). 


A16  OF  THAVKUSE. 

CHAP.  §  65.  This  exposition  of  the  rule  may  be  suffi- 
vn.  ciently  illustrated,  by  a  single  and  very  simple  ex- 
ample : — If  a  defendant  pleads  that  his  co-defend- 
ant is  dead,  and  the  plaintiff  replies  that  he  is  alive, 
absque  hoc  that  he  is  dead  ;  the  inducement,  (that 
he  is  alive),  asserts  in  substance  the  same  fact,  as 
does  the  traverse  :  That  * he  is  alive?  and  that  '  he 
is  not  dead?  being  in  effect  the  same  proposition,  ex- 
pressed in  different  terms  ;  and  a  denial  of  either  of 
these  assertions  is  a  denial  of  the  other.  It  is  mani- 
fest then,  that  if  the  traverse,  in  this  case,  consists  of 
issuable  matter ;  so,  necessarily,  does  the  induce- 
ment. A  similar  explanation  will  be  found  applica- 
ble to  every  other  instance,  in  which  the  inducement 
and  traverse  go  to  the  same  point,  if  they  are  adapt- 
ed to  each  other  ;  and  if  not,  the  pleading  is,  for  that 
cause,  demurrable(^). 

^  66.  2.  When  the  inducement  and  traverse  go 
to  different  points,  (of  which,  it  is  believed,  no  in- 
stance occurs,  except  in  the  defendant's  plea),  the 
rule,  requiring  the  inducement  to  consist  of  issuable 
matter,  is  founded  on  equally  clear,  though  different, 
reasons  from  those  mentioned  above.  In  cases  of 
this  kind,  the  inducement  is,  itself,  traversable  ;  as 
it  forms  a  substantive  and  distinct  ground  of  defence, 
not  embraced  in  the  traverse,  and  is  indispensably 
necessary,  to  render  the  defence  complete,  or  co- 
extensive with  the  declaration.  And  it  is  manifest, 
that  whatever  constitutes  the  defendant's  answer  to 
any  material  part  of  the  complaint,  must  itself  be 

(/)   Cro.  Car.  266.  336.     Com.  Dig.  Pleader,  G.  20. 


OF  TRAVERSE. 

material,  and  capable  of  being  put  in  issue.     Thus,  if  CHAP. 
in  trespass,  the  defendant  justifies  for  a  single  day,      vn. 

with  a  traverse   that  he  is  guilty  on   any  other  day  ;  

it  is  obviously  necessary  that  the  matter  of  justifica- 
tion, which  constitutes  the  inducement  to  the  tra- 
verse, be,  itself,  material  and  issuable  ;  since  the  de- 
fence would  otherwise  be  defective  in  substance,  as 
not  answering  the  whole  gravamen,  (ante,  ch.  6,  §§ 
98.  99.)  The  rule,  then,  that  the  inducement  to  a 
traverse  must  consist  of  issuable  matter — whether  it 
goes  to  the  same  point  as  the  traverse,  or  to  a  differ- 
ent point — appears  to  be  fully  supported  by  the 
sound  principles  of  pleading. 

§  67.  It  has  been  supposed  by  some(w),   that  an  uses  of  the 

7  .      ,  i  •  r  inducement. 

inducement  to  a  traverse  is  but  an  arbitrary  lorm,  an- 
swering no  useful  purpose,  and  therefore  always  un- 
necessary. And  it  is  doubtless  true,  that  where  the 
inducement  and  traverse  go  to  the  same  point,  (in 
which  case  the  inducement  cannot,  in  general,  be 
itself  traversed,  or  otherwise  answered),  an  induce- 
ment, in  many  cases,  answers  no  necessary  purpose 
(ante,  ^  38).  But  on  the  other  hand,  it  is  certain 
that  in  many  cases,  an  inducement  is  at  least  useful, 
and  in  some,  absolutely  necessary. 

§  68.  Thus,  1.  Where  the  inducement  and  tra- 
verse both  go  to  the  same  point,  the  former  must, 
in  fair  and  liberal  practice,  be  deemed  useful,  in  dis- 
closing the  particular  grounds  or  facts,  on  which  the 

(«)   1  Swift's  Dig.  692. 


418  OF  TRAVERSE. 

CHAP,  traverse  is  founded,  and  by  which  it  is  to  be  inain- 
vii.  tained  in  proof.  2.  In  many  cases  of  this  kind,  an 
inducement  is  indispensably  necessary^  to  avoid  a 
negative  pregnant,  which  the  traverse  would  other- 
wise be,  (ante,  ^  35.  36.)  3.  Where  the  induce- 
ment and  traverse  go  to  different  points,  the  induce- 
ment, as  has  just  been  shown,  is  a  substantive  and 
indispensable  part  of  the  defence.  It  may  also  be 
suggested,  that  an  inducement,  by  way  of  protesta- 
tion (which  is,  indeed,  no  part  of  the  pleadings},  may 
often  be  necessary,  for  the  purpose  of  excluding  an 
estoppel,  (ante,  §§  58.  59.) 


CHAPTER  VIII. 


PART  I. — OF  DUPLICITY. 

SECTION  I.      Duplicity,  or   double  pleading,  con-    CHAP. 
sists  in  alleging,  for  one  single  purpose  or  object,  two     vm' 
or  more  distinct  grounds  of  complaint,  or  defence, 
when  one  of  them  would  be  as  effectual  in  law,  as  Duplicity, 
both  or'all.     This,  by  the  principles  of  the  common  "' 
law,  is  a  fault  in  all  pleading ;  because  it  produces 
useless  prolixity,  and  always  tends  to  confusion,  and 
to  the  multiplication  of  issues(a).     Dtfplicity  in  the 
declaration   has   been   heretofore   described,  (ch.  4, 
§  99)  ;  and  it  now  remains    to    treat  of   the  same 
fault  in  the  subsequent  pleadings. 

5>  2.     The   rule  forbidding    double  pleading  *  ex-  \  a,fau|t  in 

all  pleading. 

tends',  says  Lord  Coke,  '  to  pleas  perpetual,  or  pe- 
remptory, and  not  to  pleas  dilatory ;  for  in  their  time 
and  place,  a  man  may  use  divers  of  them'(6). 
But  by  this,  is  not  meant  that  any  dilatory  plea  may 
be  double,  or  in  other  words,  that  it  may  consist  of 
distinct  matters,  or  answers  '  to  one  and  the  same 

(a)  Co.  Litt.  304.  a.     Finch's  Law,  393.  3  Black.  Com.  311. 
Bac.  Abr.  Pleas,  &c.  K.  1. 

(b)  Co.  Litt.  304.  a. 


420 


OF  DUPLICITY. 


thing' ;  but  merely,  that  as  there  are  several  kinds, 
or  classes,  of  dilatory  pleas,  having  distinct  offices 
and  effects  ;  a  defendant  may  use  '  divers  of  them' 
successively,  (each  being  in  itself  single),  in  their 
proper  order,  (vid.  ch.  5;  ^  45.)  And  Lord  Coke 
thus  distinguishes  dilatory  pleas,  from  pleas  per- 
petual, or  to  the  action ;  because  the  latter  are  pleas, 
all  having  one  and  the  same  effect — that  of  perpetual- 
ly barring  the  action.  And  as  any  one  of  these  lat- 
ter pleas,  if  good,  is  as  effectual,  for  this  purpose,  as 
any  number  of  them  ;  the  common  law  allows  but 
one  of  them  '  to  one  and  the  same  thing' — i.  e.  to 
the  whole,  or  to  one  and  the  same  part,  of  the 
declaration,  or  demand. 

J"eadin"s,         §  3.     As    to    duplicity    iii    the    pleadings    which 

iow(thef°de-    follow  the  declaration,  the  rule  of  the  common  law 

ciarauon.     -^  ^^  every  pjea  must  be  simple,  entire,  connected, 

and  confined  to  a  SINGLE  POINT,  i.  e.  a  single  ground 

of  complaint,  or  defence(c).     And  this  rule  extends 

as  well    to   traverses,   or   matter   of  denial,  (ch.   7, 

^  49),  as  to  the  allegation  of  new  matter(rf)  ;  and 

as  well  to  the  replication,  and  all  the  later  stages  of 

the  pleadings,  as  to  the  defendant's  plea(e). 

^  4.     According  to  the  general  description  already 
given    of  duplicity,  a    double    plea    is    one,  which 

(c)  3  Black.  Com.  311. 

(d)  Bac.  Abr.  Pleas,  &c.  H.  1.  5.     Co.  Litt.  126,  a.     1  Stra. 
317.     Bull.  N.  P.  93.      1  Burr.  316.  321. 

(e)  Cas.   Temp.  Hardw.  290,     Com.   Dig.   Pleader,  F.  16. 
Fort.  335.     1  Stra.  317. 


OF  DUPLICITY. 


consists  of  several  distinct  and  independent  matters,    CHAPe 
alleged  to  the  same  point,  (i.  e.  to  the  whole,   or  to     vm. 
one  and  the  same  part,  of  the  demand,  or  defence),  PART  i. 
and  requiring  different  answers(f).     Thus,    if  the 
defendant  pleads  to  the  same  trespass,  a  justification 
and  a   release  —  or  to  the  same  debt,  duress  and  pay- 
ment —  or   pleads,   in    one  and    the    same    suit,  two 
causes  of  disability  in  the  plaintiff  —  as  two  differ- 
ent outlawries,  or  outlawry  and  alienage  ;  the  plea  is 
ill  for  duplicity^'). 

§  5.  But  the  giving  of  different  answers,  (each 
being  in  itself  single),  to  different  parts  of  the  de- 
claration, or  writ,  does  not  constitute  duplicity  : 
Since  the  different  matters,  so  pleaded,  are  not  al- 
leged to  one  and  the  same  point,  or  thing(A).  Ex.  gr. 
The  defendant  may,  at  the  same  time,  as  to  j)art  of 
the  declaration,  plead  the  general  issue,  and  matter 
of  avoidance  to  the  residue  —  or  one  matter  of  abate- 
ment to  one  part  of  the  writ,  and  another,  to  another 
part(z)  :  or  he  may,  in  the  same  manner,  plead  in 
abatement,  as  to  one  part  of  the  demand,  and  in  bar 
as  to  another(/c)  —  ex.  gr.  in  debt  on  two  bonds, 
he  may  plead  a  nonjoinder,  or  other  matter  of  abate- 

(/)  Co.  Litt.  303,  b.  304,  a.     Bac.  Abr.  Pleas,  &c.  K.  1. 

(g)  Com.  Dig.  Abatement,  C.  &  I.  3.  4.  Tidd,  589.  Lawes' 
PI.  108.  (Vide  ch.  5,  §§  4.  5.) 

(h)  Co.  Litt.  304,  a.  Bac.  Abr.  Pleas,  &c.  K.  1.  N.  1.  Lawes' 
PI.  107. 

(i)  Com.  Dig.  Abatement,  I.  5.  Lawes'  PI.  107-8.  Ante,  eh. 
5,  §6. 

(*•)  2  Bos.  &  P.  420.     Lawes'  PI.  108.     Vid.  10  Mod.  285-6. 

54 


422  OF  DUPLICITY. 

CHAP,    ment,  as  to  one  of  them,  and  non  est  factum,  or  a 
viii,     special  plea  in  bar,  as  to  the  other,  (vid.  ch.  5,  ^  7.) 
FART  i, 

^  6.  And  where  there  are  several  defendants  in 

Co-defend-  J 

ants,n?.i$     the  same  suit,  each  of  them  may,  regularly,  plead  for 

plead  differ-        _  J  ' 

•nt  pleas,  himself  a  single  matter  of  defence  to  the  whole,  or 
different  matters  to  different  parts,  of  the  writ  or 
declaration(T).  In  other  words,  each  of  the  defen- 
dants may  plead  for  himself,  as  if  he  were  a  sole  de- 
fendant. For  otherwise,  any  one  of  them  might, 
through  obstinacy  or  ignorance,  or  even  by  collusion 
with  the  plaintiff,  reduce  the  others  to  the  alternative 
of  joining  in  a  false  or  frivolous  plea}  or  of  foregoing 
all  defence  whatever. 

Exception  §  7.  But  this  rule  does  not  hold,  where  in  an 
rule1. e  '  action  on  contract,  against  several  co-defendants, 
who  are  charged  as  joint  contractors,  they  all  plead 
the  same  defence  to  the  action — as  where,  for  ex- 
ample, they  all  plead  the  general  issue,  or  the  same 
matter  of  avoidance.  In  this  case,  they  cannot  sever 
in  pleading ;  but  must  plead  jointly(w).  Thus,  in 
assumpsit  against  two  or  more,  if  they  all  plead  non 
assumpsit,  or  any  other  common  defence ;  they  must 
do  it  in  one  and  the  same  plea,  and  cannot  plead  it, 
each  for  himself,  or  severally (n).  For  in  an  action 
on  contract,  against  several,  where  they  all  rely  on 
the  same  matter  of  defence,  there  can  be  no  neces- 

(/)  Hob,  70.  250.     Slra.  509.  filO.   1140.     2  Ld.  Ray.  1372. 
Co.  Litt.  303,  a.     Lawes'  PI.  132,     2  M,  &  S.  26. 
(n»)  6  Mass.  R.  444. 


OF  DUPLICITY.  423 

shy  for  their  severing  in  pleading  :  Any  matter  of  CHAP. 
defence,  which  is  good  for  any  one  of  them,  being  vm. 
necessarily  good  for  all ;  because,  a  joint  contract  PART  i. 
being  alleged — a  joint  liability  must  be  established, 
or  there  will  be  a  variance  between  the  evidence  and 
the  declaration,  and  consequently  there  can  be  no 
recovery.  And  therefore,  if  they  all  agree  as  to  the 
kind  of  answer  to  be  given  to  the  action ;  they  are 
respectively  as  safe  in  pleading  it  jointly,  as  they 
could  be  in  alleging  the  same  matter  of  defence  sev- 
erally :  Whereas  in  an  action  ex  delicto,  against 
several,  the  same  matter  of  defence,  which  may  be 
good  for  one  of  them,  may  be  ill  for  the  others  ;  and 
therefore  they  are  allowed  to  plead  the  same  thing, 
(the  general  issue,  for  example)  severally ;  and  if 
they  plead  thus,  one  may  be  convicted  and  another 
acquitted  :  Torts,  though  charged  as  joint,  being  sev- 
eral as  well  as  joint. (o)(l) 

§  8.  And  even,  in  an  action  on  contract,  against 
several,  if  they  choose  different  defences,  they  may 
plead  severally,  i.  e.  each  a  separate  plea,  for  him- 
self/?). For  such  a  case  is  not  within  the  reason 
of  the  above  exception  (§  7).  Thus,  in  assumpsit 
againt  two,  one  may  plead  non  assumpsit,  and  the 

(0)  1  Saund.  207.  a.  b.  (n.  2.) 

(p)  3  Esp.  Rep.  76.  5  Ib.  47.  2  M.  &  S.  444. 

(1)  If  however,  several  defendants,  charged  jointly  in  tort,  join 
in  a  plea,  which  is  ill  for  either  of  them,  it  is  so  for  all  of  them 
(ante,  ch.  6,  §  101).     For  an  entire  plea  cannot  be  severed,  in  its 
effect ;  and  the  defendants  might  have  pleaded  the  same  matter, 
severally. 


OF  DUPLICITY. 

CHAP,    other  matter  of  avoidance — as  infancy.     For  each 

vin.     defendant  must  be  at  liberty  to  choose  the  ground    of 

PART  i.  his  own  defence  :      Otherwise,    several    defendants 

charged  as  joint  contractors,  might  all  be   unjustly 

subjected,  by  the  refusal  of  any  one  of  them  to  unite 

with  the  others  in  a  proper  plea. 

The  piea,        k  9.  The  *  single  point,'   to  which  each   plea,  re- 

&c.   need  * 

not  be  con-  plication,   &c.  is  required   to  be  confined,  need   not, 

fined   to   a     r  ' 

single  fact.  as  of  course,  consist  of  a  single  fact(2).  For  several 
connected  facts  may  be,  and  frequently  are  neces- 
sary, to  constitute  a  single  complete  ground  of  de- 
mand, or  defence^).  Thus,  in  pleading  an  award 
of  arbitrators,  the  defendant  may,  and  must,  allege 
the  submission,  with  a  statement  of  the  substance  of 
it,  and  the  making  of  the  award  by  the  arbitrators, 
together  with  a  statement  of  the  terms,  or  substance 
of  it :  All  these  facts  being  necessary  to  the  estab- 
lishment of  the  single  defence  of  a  decjsion  of  the 
controversy,  by  an  award  of  arbitrators(r).  And  a 
single  traverse  either  of  the  submission,  or  of  the 
award,  will  be  a  sufficient  answer  to  the  whole 
plea. 

§  10.  Thus  also,  in  an  action  for  malicious  prosecu- 
tion— or  in  false  imprisonment  against  a  sheriff,  for 

(q)  Bac.  Abr.  Pleas,  &c.  K.  2.  2  Black.  Rep.  1028.  1  Burr. 
320-1.   3  Salk.  142.   3  M.  &  S.  180.  2  Johns.  R.  433.  462. 
(r)  2  Chit.  PI.  437-8. 

(2)  This  rule,  as  applied  to  a  traverse,  has  been  already  ex- 
plained, ch.  7,  §  51. 


OF  DUPLICITY. 

an  arrest  made  on  suspicion  of  felony — the  defend-    CHAP. 
ant  may  plead  in  bar  all   such  circumstantial  facts      viu. 
(however  numerous),  as  conduce  to  show  reasonable  PART  i. 
grounds  of  suspicion,  as  the  cause  of  the  prosecution, 
or  arrest.     For  all  such  facts  go  to  constitute    the 
single  defence  of  probable  cause(s) ;  and  the  repli- 
cation, de  injuri",  &c.  absque  tali  causa,  answers  the 
whole  plea — so  that  the  different  facts  pleaded  do  not 
require  different  answers,  and  consequently  do  not 
conduce  to  multiply  issues.     The  general  replication, 
de  injuria,  frc.  absque  tali  causd,  is  a  sufficient  tra- 
verse of  all  the  facts  pleaded. 

§  11.  But  if  the  defendant,  in  the  case  last  sup- 
posed, relies  for  his  justification,  upon  any  criminal 
act  of  the  plaintiff — as,  when  he  justifies  the  arrest, 
on  the  ground  of  a  felony  actually  committed  by  the 
plaintiff;  he  can  allege  in  his  plea  only  one  such  act, 
without  making  his  defence  double :  Because  one 
actual  felony  is  as  complete  a  justification  as  several 
would  be. 

§  12.  When  however  the  fact,  relied  on  as  the 
gist  of  the  defence,  is  but  the  consequence  of  another 
fact — or  when  one  of  them  is  a  necessary  or  proper 
inducement  to  the  other,  both  may  be  pleaded,  with- 
out making  the  plea  double  (u).  And  therefore  an 
executor,  when  sued  for  a  debt  due  from  his  testa- 
tor, may  plead  that  he  has  '  fully  administered,  and 

(»)  Cro.  Eliz.  134.  871.  900.  Bridgm.  61.  2  Hawk.  P.  C. 
ch.  12.  §  8—16. 

(tt)  Plowd.  140.  a.  Poph.  186.  Mo.  25.  Com.  Dig.  Plead- 
er, 2.  March,  74.  Latch,  149.  1  Burr.  320. 


OF  DUPLICITY. 

CHAP.    so  -has  nothing  in  his  hands.'     For  the  allegation  of 
vni.      '  fully  administered,'  serves  merely  to  show  how  and 
PART  i.   why  the  defendant  has  nothing  in    his  hands.     So 
also,  to  an  action  by  a  woman,  the  defendant  may 
plead    that  after   the  cause  of  action  accrued,   she 
took  husband,  and   that  the  husband  afterwards  re- 
leased the  action.     For  it  would  be  of  no  avail   to 
plead   the   release,  without   showing   the   marriage. 
Neither  of  these  pleas,  it  may  be  observed,  requires 
more  than  a  single  answer. 

^13.  In  debt  on  bond,  the  assignment  of  more 
than  one  breach  of  the  condition,  in  the  replication, 
is  by  the  common  law,  duplicity(v)  :  Because,  at 
common  law,  one  breach  incurs  the  forfeiture  of  the 
whole  penalty ;  and  nothing  more  could  ensue  in  the 
plaintiff's  favor,  from  any  number  of  breaches.  Be- 
sides, they  would  all  go  to  one  and  the  same  point, 
viz.  the  forfeiture  of  the  entire  penalty. 

§  14.  But  in  covenant  broken,  the  plaintiff  may, 
by  the  common  law,  assign  as  many  breaches  as  he 
may  think  proper(w).  For  in  this  action,  the  plain- 
tiff can  recover  only  the  damages  actually  incurred 
from  a  breach  or  breaches  of  the  covenant ;  and  can 
legally  prove  no  other  breaches  than  those  alleged. 

^15.  And  now,  since  the  statute  8  &  9  W.  3, 
c.  11,  §  8,  by  which  courts  of  laiv  are  enabled  to 

(«)  Com.  Dig.  Pleader,  C.  33.  Comb.  297.  3  Salk.  108.  2 
Wils.  267.  Lawes'  PI.  25-7. 

(«>)  Com.  Dig.  Pleader,  C.  33.  Cro.  Car.  176.  Bac.  Abr. 
Covenant,  I. 


OF  DUPLICITY.  427 

relieve   against  penalties,  in  bonds  for  the  perform-    CHAP. 
ance    of  covenants,    or    agreements    in   indentures,     vin. 
deeds,  &c.  the  plaintiff,  in  all  actions  on  penal  bonds,  PART  i. 
falling  within  that  statute,  may,  by  express  provi- 
sion  in  the  act,  assign  as  many  breaches  as  he  pleases  ; 
and  ought  for  his  own  sake,  to  assign  as  many  as  there 
are(^)  •     Because  in  all  cases  within    the    statute, 
the  plaintiff  can  recover  for  such  breaches  only  as  are 
assigned ;  and  thus  the  same  rule  of  damages,  and  of 
pleading,  is  now,  in  England,   established   in  these 
cases,  as  by  the  common  law  prevails  in  actions  of 
covenant  broken.     The  same  rule  exists  in  the  state 
of  Connecticut,  in  all  actions,  in  general,  on  penal 
obligations. 

§  16.  Mere  surplusage,  pleaded  in  connexion  with  Surplusage 
what  is  material,    never    renders  a   plea  doubled?/)  make  a  Plea 

.7  .          ..  *        .   .  ^        double. 

not  only  because  utile  per  inutile  non  vitiatur ;  but 
more  particularly,  because  matter  of  surplusage  re- 
quires no  answer,  and  consequently  does  not  tend  to 
multiply  issues.  If  therefore  the  defendant  pleads 
payment,  and  also  a  previous  readiness  to  pay ;  the 
plea  is  not  double  :  For  the  alleged  readiness  to  pay 
is  not  issuable, 

§  17.  But  any  thing  in  itself  material,  though  ill 
pleaded,  will,  if  pleaded  in  connexion  with  other 

(x)  Bac.  Abr.  Covenant,!.  2  Black.  Rep.  1016.  1111.  2  Burr. 
820.  2  Wils.  377.  Cowp.  357.  2  Chitt.  PI.  153.  8  T.  R.  126.  6 
East,  550.  613.  1  Saund.  58.  (n.  1.)  2  Mass.  R.  542. 

(y)  1  Keb.  661.  1  Sid.  175.  Doct.  PI.  138.  Bac.  Abr.  Pleas, 
&c.  K.  2. 


4,28  OF  DUPLICITY. 

CHAP,  issuable  matter,  render  the  pleading  double(z).  And 
vin.  therefore,  where  in  trespass  for  assault  and  battery, 
PART  i.  the  defendant  justified,  by  alleging  a  molliter  manus 
imposuit  for  the  due  correction  of  the  plaintiff  as  his 
servant,  and  also  averred  that  the  plaintiff  had  releas- 
ed the  cause  of  complaint,  but  without  averring  that 
the  release  was  by  deed;  it  was  resolved,  that  the 
latter  averment  made  the  plea  double(a)  :  Because 
the  alleged  release,  though  ill  pleaded,  in  not  being 
alleged  to  be  by  deed,  was  nevertheless  issuable. 
And  it  was  held,  in  the  same  case,  that  any  matter 
which,  if  ivell  pleaded,  would  make  a  pleading 
double,  would  have  the  same  effect,  though  ill  plead- 
ed :  Since  such  matter  cannot  be  regarded  as  sur- 
plusage, nor  the  plea,  which  alleges  it,  as  void.(3) 

,  ^18.  As  instances  frequently  occur,  however, 
in  which  there  exist  two  or  more  distinct  grounds  of 
defence,  to  one  and  the  same  demand ;  it  is  obvious^ 
that  the  common  law  rule,  confining  the  defendant 
to  a  single  plea  consisting  of  a  single  matter  of  de- 
fence, must  sometimes  have  operated  unjustly  against 
him  :  Inasmuch  as  any  misapprehension  on  his  part, 

(z)  Bac.  Abr.  Pleas,  &c.  K.  2. 
(a)  Ib.  1  Keb.  661.  1  Sid.  175. 

(3)  By  a  void  plea,  is  to  be  understood  one,  of  which  the  ad- 
verse party  is  not  bound  to  take  notice  in  any  way,  and  which  he 
may  therefore  entirely  pass  over,  by  signing  judgment  as  for  want 
of  a  plea. 


OF  DUPLICITY.  429 

or  on  that  of  his  counsel,  in  regard  to  the  law,  or    CHAP. 
the  facts  of  the  case,  or  as  to  the  eventual  state  of      vm. 
the  proof,   might  sometimes  induce    him   to  choose   PART  i. 
an    unavailing    defence,  in    preference    to    another,  " 
which  would   have  been  successful.     And    thus  he 
may  have  been  subjected  to  a  recovery,  when  the 
right  of    the  controversy,   both  in  law  and  in  fact, 
was  on    his  side.     These  considerations  occasioned 
the  enactment  of  the   statute  4  Ann.  c.  16,  5>  4,  TWO  or 

j          more  pleas 

which  provides  that  '  it  shall  be  lawful,  for  any  de-  allowed  by 

J  statute  4 

fendant,  or  tenant,  in  any  action  or  suit,  or  for  any  -Anne. 
plaintiff   in   replevin,  in  any  court  of  record,  with 
leave  of  the  court,  to  plead  as  many  several  matters 
thereto    as    he    shall    think  necessary    for    his    de- 
fence'(6)(4). 

^19.  Under  this  statute,  the  defendant,  in  any 
English  court  of  record,  may,  with  leave  of  the 
court,  plead  as  many  different  pleas  in  bar,  (each 
being  in  itself  single),  as  he  may  think  proper(c). 
But  though  this  statute  allows  the  defendant  to 
plead  several  distinct  and  substantive  matters  of 
defence,  (in  several  distinct  pleas),  to  the  whole,  or 
one  and  the  same  part  of  the  plaintiff's  demand  ;  yet 
it  does  not  authorize  him  to  allege  more  than  one 

(b)  Bac   Abr.  Pleas,  &c.  K.  3. 

(c)  3  Black.  Com.  308.     Lawes'-Pl.  27-8. 

(4)  There  is  a  similar  statute  in  the  state  of  Connecticut,  and 
probably  iu  most  of  the  states  in  the  American  Union. 

55 


430 


OF  DUPLICITY. 


CHAP,    ground  of  defence,  in  one  plea.     Each  plea  must 
vin.     still  be  single,  as  by  the  rule  of  the  common  law(o?). 


PART  I. 


§  20.  Whenever  the  defendant  pleads,  in  pursu- 
ance of  this  statute,  more  than  one  plea  in  bar,  to 
one  and  the  same  demand,  or  thing,  all  of  them, 
except  the  first,  should  (regularly)  purport  to  be 
pleaded,  with  leave  of  the  court — as  in  the  follow- 
ing form,  viz.  '  and  for  a  further  plea  in  this  behalf, 
the  said  C.  D.  by  leave  of  the  court  here  for  this 
purpose  first,  had  and  obtained,  according  to  the  form 
of  the  statute  in  such  case  made  and  provided,  says' 
&c.(e)  This,  or  some  similar  form,  seems  neces- 
sary by  the  terms  of  the  statute  ;  which  makes  it 
lawful  for  the  defendant,  only  '  with  leave  of  the 
court,'  to  plead  more  than  one  plea. — The  omis- 
sion of  this  formula,  however,  is  held  to  be  an  ir- 
regularity only,  and  not  error,  nor  cause  for  demur- 
rer(ee). 

§  21.  This  statute  extends  only  to  pleas  to  the 
declaration,  and  does  not  embrace  replications,  rejoin- 
ders, or  any  of  the  subsequent  pleadingsQT).  For 
in  these  later  stages  of  the  pleadings,  the  privilege 
of  making  several  answers  to  the  same  thing,  can 
seldom  be  necessary  or  useful.  As  to  these  plead- 
ings, therefore,  the  common  law  rule  against  dupli- 
city still  remains  in  full  force.  And  therefore  the 

(d)  Lawes'  PI.  131.     1  Chitt.  PI.  512.  513. 

(e)  Lawes'  PI.  132.     2  Chitt.  PI.  421-2.     Com.  Dig.  Pleader, 
E.  2.     Story's  PI.  72,  76. 

(ce)   Andr.  109.      1  Wils.  219.     3  N.  Hamp.  R.  523. 

(/)   Bac.  Abr.  Pleas,  &c.  K.  2.     Com.  Dig.  Pleader,  E.  2. 


OF  DUPLICITY.  43 1 

plaintiff  cannot,  under  this  statute,  reply  two  several    CHAP. 
maters  to  one  plea,  nor  the  defendant  rejoin  differ-     vui. 
ent  matters  to  one  replication^).  PART  i. 

§  22.  The  plaintiff  is  at  liberty,  however,  to 
reply  separately,  to  each  of  the  defendant's  pleas — 
so  that  he  may  still  plead  as  many  replications,  (each 
being  itself  single),  as  there  are  separate  pleas  ad- 
mitting of  answers.  For,  according  to  the  first 
principles  of  pleading,  each  party  must  have  a  right 
to  answer,  in  some  form,  all  that  is  alleged  against 
him(^). 

§  23.  The  statute  is  also  limited,  in  construction, 
to  such  pleas  of  the  defendant  as  go  to  the  action, 
and  does  not  extend  to  dilatory  pleas(^).  For 
though  the  terms  of  the  statute  do  not  exclude  pleas 
of  the  latter  class  ;  yet  as  these  are  not  favored 
by  the  law  ;  the  court  will  not,  in  its  discretion, 
give  the  defendant  leave  to  plead  two  of  them  to  the 
same  thing. 

§  24.  If  any  one  of  several  pleas  pleaded  togeth- 
er, under  this  statute,  is  determined  in  the  defend- 
ant's favor ;  it  is  a  good  bar  to  the  action,  or  at 
least  to  so  much  of  the  plaintiff's  demand,  as  the 
plea  extends  to ;  although  all  the  others  should  be 
determined  in  favor  of  the  plaintiff.  For  one  good 
defence  is  as  available,  as  far  as  it  extends,  as  two 

Or)  lid. 

(A)    1  Saund.  337.  b.  (a.  2.) 

(»)   1  Sell.  Pract.  275.     Steph.  PI.  295. 


OF  DUPLICITV. 


CHAP.   or  more  would    be.     If  therefore,   any  one  of   the 

vni.     pleas,  pleaded   to  any  one  count  in   the   declaration, 

PART  i.    prevails,  either  on  an  issue  in  fact  or  in  law  ;  it  is 

an  effectual  bar  as   to  that  count  ;  and  if  any  one 

plea  to  the  whole  declaration  thus  prevails,  it  bars  the 

whole  action(fc). 

^  25.  When  several  pleas  in  bar  are  pleaded,  in 
virtue  of  this  statute,  to  one  and  the  same  thing  or 
demand,  each  of  them  is  treated,  and  operates,  as  if 
it  were  pleaded  alone  :  It  being  an  established  rule, 
that  one  of  them  '  cannot,'  in  the  language  of  Lord 
Ch.  J.  Willes,  'be  taken  in  to  help,  or  destroy  anoth- 
er ;'  but  that  '  every  plea  must  stand  or  fall,  by  it- 
self ^(l).  And  the  opinion  of  Mr.  J.  Sutler  is  ex- 
pressed in  terms  almost  literally  the  same(//).  No 
one  of  them,  therefore,  can  have  the  effect  of  dis- 
pensing with  the  proof  of  what  is  denied  by  anoth- 
er(m).  Hence  if  the  defendant  pleads,  first  the 
general  issue,  and  then  pleads  specially  matter  in 
avoidance,  which  impliedly  confesses  the  declaration 
—  (as  if  he  pleads  first,  non  est  factum,  and  adds  a 
special  plea  of  usury,  duress,  infancy,  payment,  &c.  ; 
or  pleads  all  these,  in  successive  special  pleas  —  or 
pleads  first,  not  guilty,  and  then  special  matter  of 
justification  or  discharge)  ;  the  matter  of  avoidance 

(fc)  2  Burr.  753.     1  Saund.  80.  (n.  1.) 

(/)  Willes,  380. 

(//)   1  T.  R.  125—  Ace.  5  Serg.  &  R.  411,  per  Duncan,  J. 

(m)  2  East,  426.  5  Tb.  463.  2  Johns.  R.  437.  2  Phil.  Ev. 
97.  n.  a.  1  Stark.  Ev.  296.  n.  389.  n.  1  Chitt.  PI.  543.  5 
Taunt.  233.  2  N.  Hamp.  R.  89. 


OF  DUPLICITY.  433 

thus  pleaded,  though  inconsistent  with  the  general  CHAP. 
issue,  does  not  supersede  the  necessity  of  the  plain-  vm. 
tiff's  proving  his  declaration^).  For  a  contrary  rule  PART  i. 
would  defeat  the  very  object  of  the  statute — which 
manifestly  is,  to  enable  the  defendant,  not  only  to 
plead,  but  on  the  trial,  to  rely  upon,  as  many  differ- 
ent defences,  as  he  may  choose  to  put  upon  the  re- 
cord. But  if  a  plea  in  avoidance  were  held  to  de- 
stroy the  effect  of  the  general  issue  ;  it  is  manifest 
that  the  statute,  allowing  the  defendant  to  plead 
both  pleas,  would  be  altogether  nugatory.  And  the 
effect  would,  plainly  be  the  same,  if  one  of  two  in- 
consistent pleas  in  avoidance  (as  payment,  and  accord 
and  satisfaction,  both  pleaded  to  the  whole  demand), 
were  held  to  disprove  the  other.  Indeed,  it  appears 
clear,  that  the  benefit  or  privilege  intended  to  be  con- 
ferred upon  the  defendant,  by  this  statute,  must  be 
lost  to  him,  unless  his  several  pleas  are  treated,  and 
allowed  to  operate,  as  entirely  independent  of  each 
other. 

(5)  See  a  contrary  opinion,  15  Mass.  R.  48,  where,  in  an  ac- 
tion of  slander,  the  defendant  pleaded  (in  virtue  of  a  statute,  simi- 
lar to  that  of  4  Jinn.}  the  general  issue,  and  also  a  special  justifi- 
cation: In  which  case  it  was  resolved,  that  the  admission  contain- 
ed in  the  special  plea,  that  the  words  charged  were  uttered  by  the 
defendant,  was  sufficient  proof  of  that  fact ;  and  that  the  plaintiff 
was,  consequently,  not  bound  to  prove  the  uttering  of  the  words. 
And  in  the  very  ingenious  argument  of  the  learned  judge,  who 
delivered  the  opinion  of  the  court,  the  same  rule  is  held  to  extend 
to  every  case,  in  which  the  general  issue,  and  a  special  plea  in 
avoidance,  are  pleaded  to  one  and  the  same  demand.  But  this 
opinion  appears  to  be  opposed,  not  only  to  the  spirit  of  the  statute, 
but  to  the  general  practice  under  it. 


What 
different 
pleas   are 
allowed 
under  the 
statute   of 
Anne. 


OF  DUPLICITY. 

§  26.  Many  questions  have  heretofore  arisen,  as 
to  what  several  defences  in  bar  may  be  pleaded  to- 
gether, under  this  statute,  to  one  and  the  same  de- 
mand ;  and  a  copious  catalogue  of  such  pleas  as 
may,  and  of  such  as  may  not,  be  thus  pleaded  to 
gether,  is  presented  in  Comyns'  Digest,  Pleader,  E. 
2.  For  an  opinion  was  formerly  entertained,  that 
mere  inconsistency  between  two  given  pleas  was  a 
decisive  objection  to  their  being  pleaded  together, 
under  the  statute.  But  if  such  a  rule  should  pre- 
vail, the  statute  would,  in  a  great  measure,  be 
practically  repealed.  For  the  general  issue,  which 
is  almost  universally  the  first  of  the  several  pleas 
pleaded  together  under  the  statute,  is,  on  strict 
common-law  principles,  inconsistent  with  almost 
every  special  matter  of  defence  whatever(6) :  Since 
the  general  issue  denies,  while  a  plea  in  avoidance 
admits,  the  truth  of  the  declaration.  At  this  day, 
however,  it  appears  to  be  generally  understood  as  a 
sound  rule,  in  the  construction  of  the  statute,  that 
mere  inconsistency,  between  two  or  more  pleas  in  bar, 
is  no  objection  to  their  being  pleaded  together(w)  : 

(n)  1  Chitt.  PI.  540—542.  2  Ib.  431,  n.  d.  4  T.  R.  194.  13 
East,  255.  2  Phill.  Ev.  97,  n.  a.  Com.  Dig.  Pleader,  E.  2.  1 
Sell.  Pract.  299.  5  Taunt.  340.  3  Bing.  635.  3  Pick.  388. 

(6)  This  proposition,  as  applied  to  actions  on  the  case,  and 
especially  the  action  of  assumpsit,  must  be  understood  with  some 
modification.  In  these  equitable  actions,  which  were  unknown  to 
the  ancient  common  law,  the  general  issue  is  deemed  consistent 
with,  and  comprehends  many  matters  of  mere  avoidance.  ( Vid. 
ch.  6,  §§  46  to  54.) 


OF  DUPLICITY.  435 

A  rule,  which  would  appear  to  follow  of  course  from    CHAP. 
one  before  laid  down,  viz.  that  each  of  several  pleas,      vin- 
thus  pleaded  together,  is  to  be  considered  as  inde-  PAR 
pendent  of  all  the  others,  and  to  operate  as  if  plead-  ~ 
ed  alone. 

§  27.  And  it  seems  now,  that  when  the  several 
matters  of  defence,  proposed  to  be  pleaded,  all  re- 
quire the  same  mode  of  trial,  (as  by  jury),  the  de- 
fendant may  plead,  with  the  general  issue,  any  spe- 
cial plea,  except  that  of  tender (o).  The  reason,  why 
tender  cannot  be  pleaded  with  the  general  issue,  is 
not,  however,  merely  or  chiefly,  that  it  is  inconsistent 
with  that  issue  (for  so,  generally,  are  all  special  pleas 
in  bar)  ;  but  that  the  former  admits  the  debt  or 
damages  demanded  to  be  still  due,  and  in  its  effect 
goes  only  in  bar  of  the  costs,  and  the  nominal 
damages  of  detention — while  the  general  issue  and 
other  pleas  in  bar,  in  general,  deny  any  existing  lia- 
bility or  legal  duty  on  the  part  of  the  defendant. 
Actions  on  penal  statutes  are,  by  the  express  words 
of  the  statute  of  Anne,  excluded  from  its  opera- 
tion(p).  And  it  is  held,  that  the  statute  does  not 
extend  to  actions  at  the  suit  of  the  king(^p). 

§  28.  Neither  at  common  law,  nor  under  the 
statute  of  Anne,  can  a  party  plead,  and  demur,  to 

(o)   4  T.  R.  194.   5  Ib.  97.    1  Chitt.  PI.  541.    Steph.  PI.  293. 

(p)  2  Stra.  1044.  4  T.  R.  701.  1  Chitt.  PI.  541.  2  Wils.  21. 
Barnes,  365.  Cas.  Temp.  Hardw.  262. 

(pp)  Parker's  Rep.  1.  Forrest's  Rep.  57;  \vhereitissaid  that 
the  case  in  Com.  R.  422,  is  misreported. 


PART  I. 


OF  DUPLICITY. 

CHAP,  tne  same  matter  or  thing(<?) — not  at  common  law, 
vin.  by  reason  of  the  incongruity  between  the  plea  and 
the  demurrer ;  not  under  the  statute,  because  that 
only  enables  the  defendant  to  plead  several  matters, 
&c  :  .  Whereas  a  demurrer  merely  assigns  a  reason 
for  not  pleading,  and  is  not  considered  as  a  plea. 

^  29.  But  double  pleading,  (or  duplicity),  when 
not  warranted  by  the  statute,  is  only  a  fault  inform ; 
and  therefore,  under  the  statute  27  Eliz.  c.  5,  (7), 
no  advantage  can  be  taken  of  it,  except  by  special 
demurrer  (f).  For  the  ground  of  objection  to  such 
pleading  is,  not  that  it  is  deficient  in  substance  ;  but 
that  it  contains  more  than  is  necessary. 

§  30.  But  though,  where  two  distinct  and  suffi- 
cient matters,  not  warranted  by  the  statute  to  be 
pleaded  together,  are  pleaded  to  the  same  point,  by 
one  party,  the  other  may  demur  for  that  cause  ;  yet 
if,  instead  of  demurring,  he  pleads  over ;  he  must 
answer  both  of  them  :  Otherwise,  the  part  unan- 
swered will  remain  decisive  against  him(s).  And 
in  such  a  case,  an  answer,  (in  itself  single),  to  each 
matter,  does  not  constitute  duplicity  :  For  the  two 
answers  are  not  to  one  and  the  same  point,  but  to 

(<?)  Bac%  Abr.  Pleas,  &c.  K.  1.  N.  1. 

(r)  Bac.  Abr.  Pleas,  &c.  K.  1.  2  Lill.  Ab.  397.  1  Saund.  337. 
b.  (n.  3.)  Com.  R.  115.  Com.  Dig.  Pleader,  E.  2.  1  Wils.  219. 
1  Bos.  &  P.  415.  416.  Lawes'  PI.  132-5.  6  Mass.  R.  337-8.  2 
N.  Hamp.  R.  180.  308. 

(*)  1  Vent.  272.  Bac.  Abr.  Pleas,  &c.  K.  1. 

(7)  For  this  statute,  see  Demurrer,  ch.  9. 


OF  DUPLICITY. 

two  different  points.     If,  for  example,  to  a  plea  of   CHAP. 
infancy,  in  assumpsit,  the  plaintiff  replies  necessaries,     vin. 
and  also  a  promise  after  full  age ;  the  defendant,  if  PART  i. 
he   does   not  demur  for  the   duplicity,  must  give   a 
substantive,  single  answer  to  the  allegation  of  ne- 
cessaries, and  another,  to    that  of    the  subsequent 
promise.     For   if  the  rejoinder  should  answer  but 
one   of  these   allegations ;  the   other,  remaining  un- 
answered, would  destroy  the  plea  in  bar. 

^  31.  The  rule,  requiring  a  demurrer,  for  du- 
plicity, to  be  special,  does  not  extend  to  declara- 
tions, in  which  there  is  a  misjoinder  of  causes  of  ac- 
tion— or  in  other  words,  to  cases,  in  which  the 
plaintiff  joins,  in  different  counts  in  one  declaration, 
different  and  incongruous  causes  of  action,  as  sub- 
stantive and  distinct  grounds  of  recovery  :  As,  where 
he  thus  joins  contract  and  tort,  or  case  and  trespass. 
Such  a  misjoinder  has  been  heretofore  shown  to  be 
an  incurable  fault,  and  consequently  ill,  on  general 
demurrer  or  (with  the  exception  mentioned,  ante, 
c.  4,  ^  97),  on  motion  in  arrest  of  judgment,  after 
verdict,  or  on  writ  of  error(Y). 

(0  1  Salk.  10.  Bac.  Abr.  Pleas,  &c.  B.  3.   1  T.  R.  274.    1  H. 
Black.  108.  2  Bos.  &  P.  424.  7  Barn.  &  Cresw.  444.   12  Johns. 
R.  349.     1 1  Mass.  R.  59.  60.     1  M.  &  S.  360. 
56 


438 


OF  PROFERT  AND  OYER. 


CHAP. 

VIII. 

PART  II. 


Profert  of 
deeds, 
when  ne- 
cessajy. 


Oyer,  what. 


PART  II. — Of  Profert  and  Oyer. 

^  32.  It  is  a  general  rule  of  the  common  law, 
that  when  a  party  declares  on,  or  otherwise  pleads, 
a  deed  (as  a  bond,  covenant,  &c.)  and  makes  title 
under  it  (i.  e.  founds  his  demand  or  defence  upon 
it),  he  must  make  a  profert  of  it  in  his  pleading,  by 
averring  that  he  '  brings  here  into  court  the  said 
writing  obligatory',  (or  other  deed)(w). 

^  33.  The  practical  use  of  a  profert,  in  pleading, 
appears  to  be,  that  it  enables  the  court  to  inspect  the 
instrument  pleaded(8),  (the  construction  and  legal 
effect^of  which  are  matter  of  law) ;  and  entitle  the 
adverse  party  to  oyer  of  it(#). 

§  34.  Craving  oyer  of  a  writing,  according  to 
the  original  signification  of  that  term,  is  demand- 
ing to  hear  it  read(w~)  ;  which  prayer,  or  request, 
it  is  the  province  of  the  ccurt,  to  grant  or  not,  as 
the  party  praying  it  may,  or  may  not,  be  entitled  to 
it. 


(u)    Com.  Dig.  Pleader,  O.   1.      10  Co.  92,  a.  b.     1   Brownl. 
221.     Yelv.  201.     3  Black.  Com. .%?.  XXIT.    Lawes'  PI.  96-7. 
(v)   10  Co.  92,  b.     1  Chilt.  PI.  414.     1  Aichb.  Pr.  164. 
(iv}  3  Black.  Com.  299.      dpp.  ]Vo.  III.  §  6.     Lawes'  PI.  96. 


(8)  "When  proiert  is  made,  the  deed  is  supposed  to  be  in  court, 
and  to  remain  there,  to  the  end  of  tie  term,  unless  the  cause  is 
sooner  determined  ;  and  if  so,  until  it  is  determined.  2  Salk.  497. 
3  Ib.  119.  Bac.  Abr.  Pleas,  &c.  I.  12,  (2). 


OF  PUOFERT  AND  OVER.  439 

§  35.     But  in    the    modern  practice,  a  right    to    CHAP. 
oyer  entitles^the  party  demanding  it,  to  a  copy  (at     vin. 
his  own  expense),  of  the  instrument  pleaded  against  PART  n. 
him  ;  to  the  end,  that  he  may  have  an  opportunity 
to  recite,  it  upon   the  record,  and  thus  avail  himself, 
(upon  the  face  of  the  record),  of  any   thing  in  the 
writing,  which  may  aid   him,  in  meeting  the  allega- 
tions of  his   adversary^).     Thus   to  debt  on  bond, 
the  defendant  having  obtained  oyer  of  it,  and  recited 
the  condition,  is  enabled  to  avail  himself  of  the  lat- 
ter,  by   pleading,    or   demurring,   as  his  case   may 
require(9). 

^  36.  The  ground  on  which  oyer  is  awarded,  in 
any  case,  is,  that  the  party,  whom  the  law  entitles 
to  it,  is  presumed  to  be  unable,  without  it,  to  give  a 
proper  answer  to  the  title  made  under  the  instru- 
ment, pleaded  by  the  adverse  party.  And  there- 
fore, when  he,  who  is  entitled  to  oyer,  demands  it, 
he  is  not  bound  to  answer,  in  any  way,  until  it  is 
given ;  but  if  he  does  plead,  without  demanding  it, 
he  waves  his  claim  to  it(y). 

(x)  Bac.  Abr.  Pleas,  &c.  I.  12.  (1.  2.)  Hob.  217.  Show. 
P.  C.  221. 

(T/)   Bac.  Abr.  Pleas,  &c.  I.  12.  (2).  in  marg.     2  Lill.  Ab.  336. 

(9)  In  the  present  practice,  application  to  the  court,  for  an  or- 
der of  oyer,  is  seldom,  or  never  made,  except  in  cases,  where  the 
rigkt  to  it,  on  the  part  of  him,  who  demands  it,  is  questioned.  In 
other  cases  the  copy  is  usually  given  voluntarily,  by  the  attorney 
of  him,  who  pleads  the  deed,  to  the  attorney  of  the  adverse  party, 
on  the  latter's  private  request,  without  the  intervention  of  the 
court.  (1  Tidd,  518.  2  T.  11.  10.  Steph.  PI.  87.) 


440  OF  pR°FERT  ANL>  OVER. 

CHAP.  §  37.  And  in  the  English  practice,  if  he,  who  is 
vni.  bound  to  give  oyer,  does  not  give  it,  within  two  days 

PART  ii.  from  the  day  of  the  demand,  (excluding  that  day) ; 

the  adverse  party  may  sign  judgment  against  him(z)  : 

Otherwise,  the  party,  bound  to  give  oyer,  might,  by 
neglecting  it,  delay  the  proceedings  indefinitely. 
As  however  the  right  to  oyer  on  one  side,  results 
from  the  profert  made  on  the  other ;  the  first  proper 
inquiry,  under  the  present  head,  is,  in  what  cases  it 
is  necessary,  for  him  who  pleads  an  instrument,  to 
make  a  profert  of  it,  in  his  pleading  ? 

^  38.  It  has  already  been  stated  (^  32),  that  he, 
who  pleads  a  deed,  and  makes  title  under  it,  must 
plead  it  with  a  profert.  For  the  deed  being,  in 
every  such  case,  the  foundation  of  the  pleader's  suit, 
or  defence,  is  therefore  a  matter,  which  the  adverse 
party  should  have  an  opportunity  to  answer,  direct- 
ly upon  the  record ;  which,  however,  he  cannot  do, 
without  having  obtained  oyer(a). 

or  what  &  39.     As  a  general  rule,  profert  is  required  of  no 

instruments  *         .  J       " 

profert  muat  other  instruments    than    deeds:      Ihese  being;    the 

be  made.  .  .    .  .  .     . 

only  private  writings,  which,  by  the  original  princi- 
ples of  the  common  law,  are  considered  as  instru- 
ments, on  which  an  action  of  defence  can  be  directly 
founded.  And  consequently,  he  who  pleads  a  writ- 
ing, not  under  seal — as  a  bill  of  exchange,  promis- 

(2)   2  T.  R.  40.     Com.  Dig.  Pleader,  P.  1.     Barnes,  245. 

(a)  1  Keb.  513.  Hutt.  33.  1  Saund.  317.  (n.  2.)  Bac.  Abr. 
Pleas,  &c.  I.  12.  (2.)  2  Ld.  Ray.  1135.  2  Black.  R.  1108. 
1  Stra.  227.  2  Saund.  60.  (n.  3.)  366.  (n.  1.)  409.  410. 


OF  PROFERT  AND  OVER.  441 

sorj  note,  or  other  unsealed  written  agreement — is    CHAP. 
not  bound  to  make  profert  of  it(6).     For  written  con-     vni. 
tracts  not  under  seal,  are  regarded  by  the  common  PART  u. 
law,  not  as  instruments,  on  which  actions  are  found- 
ed  ;  but  merely  as  simple  contracts,  or,  (more  pre- 
cisely), as  evidence  of  parol  contracts(c).     Of  such 
instruments,  therefore,  oyer  is  not  demandable. 

^  40.  Yet,  as  it  has  been  customary,  under  the 
practical  extension  of  the  law-merchant,  in  modern 
times,  to  count  upon  bills  of  exchange  and  promis- 
sory notes,  as  instruments ;  it  has  become  a  practice, 
for  the  court,  on  the  prayer  of  the  defendant,  to  or- 
der a  copy  of  such  instrument,  when  declared  upon, 
to  be  delivered  to  him,  before  he  is  obliged  to 
plead (d).  In  this  practice,  however,  the  defend- 
ant, it  seems,  cannot  found  his  plea  upon  a  recital  of 
the  copy  on  the  record :  Since  this  can  be  done, 
only  on  oyer(e) ;  which  is  the  technical,  and  only 
mode,  in  which  the  party,  against  whom  an  instru- 
ment is  pleaded,  can  avail  himself  of  any  thing  in  it, 
by  plea. 

^  41.  Nor  is  profert  necessary,  of  a  will,  or  an 
award,  though  under  seal(f).     For  neither  of  these 

(6)  3  Lev.  205.    Com.  Dig-.  Pleader,  O.  3.  P.  1.    1  Sid.  386 
Bac.  Abr.  Pleas,  &c.  I.  12.  (2.)   Chitt.  on  Bills,  185. 

(c)  7  T.  R.  351.  n.  7  Bro.  P.  C.  550.   1  Salk.  215.    2  Black. 
Com.  465-6.       Rob.  on  Fr.  Conv.  99.     1  Povv.  on  Cont.  332-3. 
341.  Chitt.  on  Bills,  9. 

(d)  Tidd,  532.     Vide  Com.  Dig.  Pleader,  P.  1.     1  Salk.  215. 

(e)  1  Keb.  513.    Hutt.  33.   Bac.  Abr.  Pleas,  &c.  I.  12.  (2.) 
</)  Com.  Dig.  Pleader,  O.   3.  Arbitrament,  I.     Sty.  459.     3 

Caines'  R.  256. 


4^2  OF  PROFERT  AND  OVER. 

CHAP,    instruments  is  a  deed ;  and  a  seal  neither  constitutes 
vin.     an  essential  part,  nor  changes  the  legal  character,  of 
PART  n.  either  of  them. 

§  42.  Of  records,  properly  so  called,  profert  is 
not  required  to  be  made(^).  For  records  are  public 
property,  deposited  and  kept  for  public  use,  in  public 
offices,  designated  for  that  purpose ;  and  are,  there- 
fore, not  removable  for  the  convenience  of  individ- 
uals, nor  subject  to  their  control. 

§  43.  But  the  general  rule,  that  profert  need  be 
made  of  no  other  instruments  than  deeds,  is  subject 
to  an  exception,  in  actions  brought  by  executors,  or 
administrators,  as  such — in  which  cases,  profert  must 
be  made  of  the  letters  testamentary,  or  letters  of  ad- 
ministration, by  virtue  of  which  the  plaintiff  asserts 
his  right  to  bring  the  suit(A)  :  These  letters,  though 
not  strictly  deeds,  being  writings  to  which  a  seal  is 
essential,  and  on  which  the  plaintiff  founds  his  title 
to  prosecute  the  action. 

^  44.  A  party  may  sometimes,  in  evidence^  make 
title  under  a  deed,  without  pleading  it ;  and  when- 
ever he  may,  and  does,  take  this  course,  no  profert 
need,  or  can,  be  made  of  it(10). 

(g)  Co.  Litt.  225.  Tidd,  529.  Bull.  N.  P.  252.  1  T.  R.  150. 
Lawes'  PI.  97.  8  Wheat.  691. 

(/O  Com.  Dig.  Pleader,  O.  3.  Hob.  38.  1  Roll.  Ab.  78.  1 
Stra.  412.  Vid.  11  Mass.  R.  314. 

(10)  In  what  cases,  a  party  may  thus  make  title,  is  explaincd» 
ch.  4,  §§  43.  44. 


OF  PROFERT  AND  OYER.  443 

^  45»     But  where  any   interest  or  right,  acquired   CHAP. 
by  deed,  could  not  pass  by  the  common  law,  without     vin. 
deed,   (as  where  a  party  claims,  by  deed,  a  thing  PART  n. 
lying  only  in  grant — ex.  gr.  an  incorporeal  heredita-  " 
ment),  he    must    plead    the    deed(ll);  and   if  he 
founds  his  action  or  defence  upon  it ;  "he  must  also, 
by  the   first  general  rule  (ante,  §  32),  make  profert 
of  it.     The  rule  is  the  same,  where  one  pleads  a  re- 
lease ;  because,  by  the  common  law,  a  seal  is  neces- 
sary to  give  effect  to  it(i).     Hence  also,  in  covenant 
broken,  and  in  debt  too,  when  founded  on  specialty, 
the  instrument  must  be  pleaded,  and  profert  made  of 
it(&).     For  in  both  cases,  the  action  is  founded  on 
a  deed. 

^  46.  And  even  though  the  interest  or  right, 
asserted  by  the  pleader,  might  pass  without  deed ; 
yet  if  the  deed  be  pleaded,  (though  unnecessarily,) 
and  title  be  made  under  it  ;  profert  of  the  deed 
must,  regularly,  be  made(/).  For  in  cases  of  this 
kind,  the  same  reasons  exist  for  requiring  profert, 
as  if  the  interest  could  not  have  passed  without 
deed,  viz.  that  the  adverse  party  may  have  an  op- 
portunity to  answer,  upon  the  record,  the  instrument, 
under  which  title  is  made  against  him,  upon  the  re- 
cord :  Since  the  deed,  in  the  case  here  supposed,  is 

(i)  6  Co.  38.  a.  b.  43.  b.  Bac.  Abr.  Pleas,  &c.  I.  12.  (1.) 
1  Bulstr.  119.  2  Salk.  519.  Cro.  Car.  143.  2  Wils.  376. 
Cro.  Eliz.  571.  2  Stra.  814. 

(fc)   Cro.  Eliz.  571.     1  Saund.  276.  (n.  1.) 

(/)  Bac.  Abr.  Pleas,  &c.  I.  12.  (1.)   Lawes'  PI.  97.  2  Mod.  64. 

(11)  Vid.  ch.  4,  §41. 


AJih.  OF  PROFERT  AND  OVER. 

.«fMr.l? 

CHAP.    not  mere  evidence  of  the  title  of  him  who  pleads  it ; 

vin.      but  the  foundation  or  gist  of  his  pleading.     Thus,  in 

PART  ii.  the  case  of  a  lease  assigned  by  deed,  if  he,  who  al- 

leges  the  assignment,  pleads  also  the  deed  (though 

unnecessarily) ;    and    founds   his  action   or   defence 

upon  it ;  he  must  plead  it  with  profert — though  he 

was  under  no  necessity  of  pleading  the  deed.     (Fid. 

ch.  4,  §  43). 

when  pro-  §  47.  But  where  one  pleads  a  deed  of  any  kind, 
dTed°iSaun-  without  making  title  under  it,  he  is  not  bound  to  make 
profert  of  it :  As  where  a  deed  is  pleaded,  merely  as 
inducement  to  the  action  or  defence(m).  And  there- 
fore, in  an  action  for  disturbance  of  a  right  of  way, 
which  lies  in  grant),  if  the  plaintiff  pleads  the  deed, 
under  which  he  claims  the  right ;  he  is  not  bound  to 
make  profert  of  it(w).  For  the  gist  of  the  action  is 
the  tort  complained  of;  and  the  right  of  way  only 
inducement,  to  which  it  is  neither  necessary  nor  pro- 
per for  the  defendant  to  plead ;  although  he  may 
contest  it,  in  evidence. 

&  48.     And  the  general  rule,  first  laid  down,(& 

Exceptions  i  J\  3 

e°raihrufeen"   ^2),  that  he  who  pleads  a  deed,  and  makes  title  un- 

on*/Ts2    der  it»  must  make  profert  of  it,  is  subject  to  several 

exceptions — all  of  which,  however,  are  founded  on 

the  pleader's  actual,  or  presumed  inability  to  produce 

(m)  6  Co.  38.  a.  b.  10  Ib.  92.  1  Saund.  276.  (n.  1.)  Bac. 
Abr.  Pleas,  &c.  I.  12.  (1.)  8  T.  R.  573.  1  Chitt.  PI.  476—7. 
2  Ib.  174.  n.  (z). 

(n)  lid.  2  Lill.  Ab.  394.     Palm.  387.     Cro.  Jac.  673. 


OF  PROFERT  AND  OVER. 

the  instrument(12).     For  the  rule,  requiring  profert    CHAP. 
of  a  deed,  in  any  case,  presupposes  or  presumes,  that      VIIL 
the  pleader   has  the  possession  or  control  of  it(o).  l         n* 
Hence,  1.  a  stranger  to  a  deed  may,  in  general,  plead 
it,  and  make  title  under  it,  without  profert.     Thus  if 
a  grant,  by  deed,  is  made  to  A.,  to  the  useoj  B.  ;  the 
latter  may  plead  the  deed,  without  profert  ;  though 
he  deduces  his  own  title  from  it  :  Because  he  is  sup- 
posed not  to  have  the  control  of  i 


ed  of 


^  49.  Thus  also,  and  for  the  same  reason,  one 
who  claims  title,  accruing  by  operation  of  laiv,  under 
a  deed  to  another,  may  plead  the  deed,  without  pro- 
fert :  As  where,  in  a  writ  of  dower,  the  demandant 
pleads  a  grant  to  her  deceased  husband,  of  the  sub- 
ject in  which  she  demands  dower(<7). 

§>  50.    Yet  a  tenant   by  the  curtesy.  who   pleads  a  Profer 

*"  requir 

deed,    to  which  his  deceased  wile  was  party,  and  tenant  by 

1  .          'he  curtesy, 

makes   title   under   it,    must  make    profert    of    it  ;  of  »  deed 

r     J  7    to  his  wife. 

though  he  comes  in  by  operation  of  law  :  Because  he 

(o)  10  Co.  93-4.  Bac.  Abr.  Pleas,  &c.  I.  12.  (1).  Garth.  316- 
Cro.  Car.  441.  1  Ves.  389.  Com.  Dig.  Pleader,  O.  8. 

(p)  Com.  Dig.  Pleader,  O.  8.  Cro.  Jac.  217.  Carth.  316. 
Cro.  Car.  441. 

(q)  Co.  Litt.  225.  Bac.  Abr.  Pleas,  &c.  I.  12.  (1).  5  Co.  75. 
Com.  Dig.  Pleader,  0.  8. 

(12)  When  he,  who  makes  title  under  a  deed,  in  pleading,  is 
parly  or  privy  to  it,  he  is  presumed  to  have  the  control  of  it,  until 
the  contrary  is  shown.  But  a  stranger  to  it  is,  in  general,  pre- 
sumed unable  to  produce  it. 

57 


OF  PROFERT  AND  OYER. 


CHAP.    ls  presumed  to  have  possession  of  her  muniments  of 
VIIL     title,  and  may  retain  them,  during  his  life(r). 


PART  II. 


vant. 


or  a  ser-  §51.  So  also,  where  a  servant  justifies,  under  a 
deed  to  his  master,  without  alleging  any  right  or  in- 
terest in  himself,  he  must  make  profert  of  the  deed(s). 
For  the  master's  title  is  the  gist  of  the  defence ;  and 
the  servant  standing  in,  and  voluntarily  assuming, 
his  master's  place,  and  in  the  character  of  his  repre- 
sentative, must  plead  the  deed,  as  the  master  himself 
would  be  required  to  do,  if  he  were  defendant. 

%  52.  2.  That  the  deed  pleaded  is  in  the  hands  of 
the  adverse  party,  or  has  been  destroyed  by  him,  dis- 
penses with  the  necessity  of  making  profert  of  it, 
when  profert  would  otherwise  have  been  neces- 
sary^/). The  reason  is  the  same,  as  under  the  first 
general  exception,  above  stated  (§  48). 

§  53.  3.  It  also  appears,  now,  and  for  the  same 
reason,  to  be  established,  that  when  a  deed  has  been 
lost  or  destroyed,  by  time  or  casualty,  it  may  be 
pleaded,  and  title  made  under  it,  without  profert(u)  : 
Though  it  was  formerly  supposed,  that  the  only  re- 

(r)  Co.  Litt.  226.  a.  Bac.  Abr.  Pleas,  &c.  I.  12.  (1).  10  Co. 
94.  Com.  Dig.  Pleader,  0.  9. 

(s)  10  Co.  92.  a.  Com.  Dig.  Pleader,  O.  5.  Co.  Litt.  226.  a. 
Cro.  Jac.  292.  Bac.  Abr.  Pleas,  &c.  I.  12.  (1). 

(0  5  Co.  75.  a.  1  Saund.  9.  a.  (n.  1).  3.  T.R.  151.  153.  2  H. 
Black.  259.  1  Chitt.  PI.  349.  2  Ib.  154.  n.  (k). 

(«)  1  Saund.  9.  a.  (n.  1).  2  H.  Black.  259.  Peake  Ev.  97. 
302.  (2d  ed.) 


OF  PllOFERT  AND  OVER.  447 

lief   against    such   an    accident    was   in    equity(v).    CHAP. 


And  even  of  late,  this  exception  to  the  general  rule, 

in  a  court  of  law,  has  been  recognized  with  apparent  PAR' 

reluctance(to). 

§  54.     It  follows  from  the  preceding  principles,  The  special 
that  when  a  party,  who  is  presumed  to  have  the  con-  d£peMe  - 
trol  of  a  deed,  pleads  and   makes   title  under  it,  he  fert.mustbo 
must  make  profert  of  it,  unless  the  profert  is  dis- 
pensed with,  in  virtue  of  one  of  the  two  last  excep- 
tions ;  and  in  either  of  these   two  cases,  he  musk—  >• 
in  order  to  justify  the  omission  of  a  profert  —  allege, 
in  his  pleading,  the  special  facts,  which  bring  the 
case  within   the  exception  :     As  that  the  deed  is  in 
the  hands  of  the  adverse  party,  or  lost,  or  destroyed, 
&c.     For  if  he  omits  to  make  profert,  and  assigns 
no  sufficient   cause  of  the  omission  ;  his  pleading  is 
demurrable.      And  if  he  unadvisedly  makes  profert^. 
in  such  a  case  ;  he  enables  the  adverse  party  to  de-r 
mand  oyer,  and  to  sign  judgment  against  him,   for 
not  giving  it(V)  :     Because,  having  pleaded  that  he 
brings  the  deed  into  court,  he  cannot,  while  that  al- 
legation remains,  retract  or   deny  it,  by  proving  what 
might    have    dispensed    with    it.     Yet,    under    the 
law  of  amendments,  the  court  will,   on  motion,   in 
the  last  case,  allow  the  pleader  of  the  deed  to  amend 
his  pleading,  by  striking  out  the  profert,  and  stating 

(v)  1  Yes.  389.  1  Atk.  61.  6  Ves.  jun.  812.  813.  9  Ib.  464. 
1  Madd.  ch.  25.  1  Ridgway's  Rep.  361. 

(to)   10  East,  55. 

(a-)  1  Wils.  16.  2  Stra.  1186.  1  Mod.  2G6.  4  East,  580. 
1  Saund.  9.  a.  (u  1.)  Ante,  §  37. 


OF  PROFERT  AND  OYER. 


CHAP,    the   special  facts,  which  dispense  with  it(y)  ;  with 
VIIL     an  averment,  that  by  reason  of  those  facts,  he  can- 

PART  II. 


Must  be          ^  55.  Whenever  an  original  party  to  a  deed  would, 
privies  u>     according  to  the  preceding  distinctions,  have  been 

the   original  ,  -.  .  /»  ,^    ..,-,..,  . 

party.  bound  to  make  projert  ot  it,  in  pleading  it,  those  in 
privity  with  him  must  plead  it,  in  the  same  man- 
ner(13).  Thus  if  an  heir,  as  such,  pleads  and 
makes  title  under  a  deed  to  his  ancestor  ;  he  must 
regularly  make  profert  of  it.  And  the  rule  is  the 
same,  when  an  executor  or  administrator  sues  upon  a 
specialty,  given  to  his  testator  or  intestate(z)  :  It 
being  presumed  that  privies  possess,  or  can  com- 
mand, deeds  given  to  those  with  whom  they  are  in 
privity. 

^  56.  When  profert  of  a  deed  is  required  by  law, 
and  is  actually  made,  the  adverse  party,  as  has  been 
heretofore  stated,  is  entitled  to  oyer  of  the  deed  ; 
but  if  profert  is  made,  unnecessarily,  and  the  plead- 
er does  not  make  title  under  the  deed,  (as  where  it 
is  pleaded  only  as  inducement)  ;  oyer  of  it  is  not 
demandable(a).  The  profert,  in  such  a  case,  is  sur- 

(y)  1  Saund.  9.  a.  (n.  1.)  1  Wils.  16.  8  T.  R.  153.  n.  Vid. 
1  Stark.  R.  74.  (60.) 

(z)  Co.  Litt.  267.  317.  10  Co.  92.  94.  Bac.  Abr.  Pleas, 
&,c.  I.  12.  (1.)  Com.  Dig.  Pleader,  O.  4. 

(a)  Tidd,  529.  2  Salk.  497.  Lawes'  PI.  96.  97.  Doug. 
476-7.  8  Wheat.  695. 

(13)  For  the  different  sorts  of  privily,  see  Co.  Litt.  352. 
Gilb.  Ev.  81.  Bull.  N.  P.  232.  3  Co.  23. 


OF  PROFERT  AND  OYER. 

plusage.     For  the  deed,  being  but  inducement,  can-    CHAP. 
not  be  the  proper  subject  of  any  answer  or  notice,     VI11- 
in  the  pleading  of  the  adverse  party.  PART  II. 

^  57.  He  who  is  entitled  to,  and  obtains,  oyer 
of  a  deed,  is  not  bound  to  take  any  notice  of  it  in 
his  pleading(6)  :  The  object  of  granting  it  being 
merely  to  enable  him  to  do  so,  at  his  pleasure.  He 
may,  however,  after  reciting  the  instrument,  verba- 
tim, on  the  record,  avail  himself  of  any  advantage, 
which  any  part  of  it,  not  set  out  by  his  adversary, 
may  afford  him.  The  mode,  in  which  such  advan- 
tage may  be  taken,  may  be  either  by  pleading,  or 
demurring,  as  the  case  may  require  (ante,  ^  35). 
Thus,  to  debt  on  bond,  the  defendant,  after  re- 
citing the  condition,  on  oyer,  may  plead  perform- 
ance, or  tender  of  performance,  of  the  condition  ;  or 
any  illegality  in  the  contract,  not  appearing  on  the 
face  of  the  instrument ;  or  any  other  extrinsic  fact, 
which  may  defeat  a  recovery  on  the  bond(c). 

§  58.  Or  if  the  instrument  sued  upon,  or  upon 
which  the  defence  is  founded,  is,  upon  the  face  of  it, 
void,  either  from  illegality,  or  otherwise  ;  or  is,  from 
any  other  cause,  insufficient,  upon  the  face  of  it,  to 
maintain  the  demand  or  defence  founded  upon  it ; 
or  if  there  is  any  material  variance  between  the  in- 
strument, as  recited  on  oyer,  and  the  description  of 

(6)  Lawes'  PI.  98.  2  Stra.  1241.  1  Wils.  97.  Com.  Dig. 
Pleader,  P.  1. 

(c)  3  Black.  Com.  299.  300.  Bac.  Abr.  Pleas,  &c.  I.  12.  (2.) 
Lawes'  PI.  98.  99.  6  Mod.  28. 


450  OF  PROFERT  AND  OVER. 

CHAP,    it  in  the  pleading  of  him,  who  has  made  profert  of 
VIIL     it ;  the  adverse  party  may  demur  to  the  pleading  in 
H"  which  the  profert  is  made(d).     For  in  the  two  first 
cases,   the   voidness  or  insufficiency  of  the    instru- 
ment, and  in  the  last,  the  variance,  will,  from  the 
recital,  appear  upon  the  record;  and   the  deed,   as 
recited,  is  considered   as  parcel  of  the  pleading  of 
him,  who  pleads  it ;  and  consequently,  has  the  same 
effect,  as  if  it  had  been  set  out,  verbatim,  in  his  own 
pleading (e). 

Effect  of  a        k  59.     But  if  the  party,  who  has  obtained  over  of 

false  recital,  r  it 

onoyei.  a  deed,  and  who  professedly  sets  it  out  upon  the 
record,  recites  it  falsely,  or  omits  to  recite  the  whole 
of  it ;  he  who  pleaded  it,  may  relieve  himself  of 
the  effect  of  the  misrecital,  in  either  of  two  ways. 
Thus,  1.  he  may  sign  judgment,  as  for  want  of  a 
plea.  For  he,  who  undertakes  to  set  out  his  adver- 
sary's deed,  on  oyer,  is  permitted  to  do  so,  only  on 
the  implied  condition,  that  he  recite  it  truly,  and  in 
full.  And  his  failure,  in  either  of  these  particulars, 
being  a  breach  of  this  condition,  has  the  same  ef- 
fect, as  the  failure  of  a  party  to  plead  in  his  proper 
turn.  Or,  2.  the  pleader  of  the  deed  may,  instead 
of  signing  judgment,  pray  that  his  deed  may  be 
enrolled  upon  the  record,  by  a  proper  officer  of  the 
court ;  and  on  its  being  truly  enrolled,  may  demur — 

(d)  Hob.  217.     1  Saund.  317.     2  Ib.  366.  (n.  1.)     Com.  Dig. 
Pleader,  P.  1.     Bac.   Abr.  Pleas,  &c.  I.  12.  (2.)     2  Wils.  342. 
Lawes'  PI.  99. 

(e)  lid. 


OF  PROFERT  AND  OYEU.  451 

as  the  misrecital,  or  omission,  will,  on    the  enrol-    CHAP. 


VIII. 


merit,  appear  upon  the  record(f). 

^  60.     On   profert   made,  the    awarding  of  oyer,  wrongful 
when   it   is  not   of  right   demandable,  is  not  error ;  £  ^^ 
but  denying  it  to  a  party,  legally  entitled  to  it,  is 
(g).     For  the  ordering  of  oyer  is  supposed  to  have 
been  of  no  prejudice  to  the  party  giving  it ;  but  the 
refusal  of  it  is  presumed  to  have  been  injurious  to 
him  who  demanded   it ;  as  he  is  supposed  to  have 
been  unable  to  plead,  advantageously,  without  it. 

§  61.  But  in  order  to  take  advantage  of  the  er- 
ror, in  the  latter  case,  the  party  praying  oyer,  must 
either  enter  his  prayer  upon  the  record,  to  the  intent 
that  the  error  may  be  there  apparent ;  or  file  a  bill 
of  exceptions,  by  which  the  same  end  may  be  attain- 
ed^.). The  former,  however,  appears  to  be  the 
more  usual  course. 

§  62.  And  when  a  prayer  of  oyer  is  entered 
upon  the  record,  it  is  in  nature  of  a  plea ;  to  which 
the  opposite  party  may  counterplead  or  demur,  as  the 
case  may  appear  to  require  ;  and  on  which  the  court 
will  give  judgment,  awarding  or  refusing  oyer,  as 
upon  an  interlocutory  plea(t). 

(/)  4  T.  R.  370.  1  Saund.  9.  b.  (n.  1.)  316.  317.  Carth. 
301.  Com.  Dig.  Pleader,  P.  1.  Stra.  227.  1241.  Lawes'  PI. 
100.  101.  1  Wils.  97.  1  Chitt.  PI.  418.  2  Ib.  461.  n.  (m).  (n). 

(g)  2  Salk.  498.  2  Lill.  Ab.  338.  1  Saund.  9.  b.  (n.  1). 
1  Chitt.  PI.  417.  Lawes'  PI.  99.  2  Mass.  R.  494. 

(h)   Bac.  Abr.     Bill  of  Exceptions.     2  Inst.  427. 

(i)  2  Salk.  498.  1  Saund.  9.  b.  (n.  1.)  Lawes'  PI.  99.  2  Ld. 
Ray.  969. 


452  OF  PROFERT  AND  OVER. 

CHAP.         §  63.  If  profert  of    an  instrument,  when  requir- 
VIIL      ed  by  the  rules  of  pleading,  be  omitted  ;  the  omis- 
n'  sion,  according  to  the  preponderance  of  authority,  is, 
Omission  of  by  the  common  law,  matter  of  substance,  arid  fatal 
whlnrtne-     °n  general  demurrer(&)  :  Inasmuch  as  it  deprives  the 
adverse  party  of  the  benefit  of  oyer,  without  which 
he  is  supposed  to  be  unable  to  plead  advantageous- 
ly.    But  by  the  statute  16  and  17  Car.  2,  c.  8,  the 
omission  is  cured  by  verdict ;  and  by  that  of  4  &  5 
Ann.  c.    16,  it  is  aided,  except  on  special  demur- 
rer^). 

§  64.  In  the  state  of  Connecticut,  it  has  long 
been  an  established  rule,  that  a  profert,  in  pleading, 
is  in  no  case  necessary,  even  in  point  of  form  :  But 
that,  whenever  a  party  is,  by  the  rules  of  the  com- 
mon law,  entitled  to  oyer,  on  profert  made,  he  is,  in 
that  state,  entitled  to  it,  withoutgd£ofert('ni).  The 
general  practice  of  the  profession  m  the  state,  how- 
ever, is  to  make  profert  of  instruments  pleaded, 
whenever  the  rules  of  the  English  common  law  re- 
quire it. 

(k)  Com.  Dig.  Pleader,  0.  17.  10  Co.  94.  Cro.  Jac.  292. 
409.  412.  Hob.  83.  Cro.  Eliz.  551.  3  Bulstr.  223— Dub.  1 
Leon.  300.  310.  Cont.  2  Salk.  497. 

(/)  Com.  Dig.  Pleader,  E.  29.  O.  17.  Bac.  Abr.  Pleas,  &c. 
I.  1.2  (1.) 

(m)   1  Root,  566. 


OF  DEPARTURE. 


PART  III. — Of  Departure. 

§  65.  Departure  in  pleading  is  the  dereliction  of 
an  antecedent  ground  of  complaint,  or  defence,  for 
another,  distinct  from,  and  not  fortifying,  the  for- 
mer^). 

§  66.  This  is  a  fault  in  all  pleading.  For,  as  has 
been  heretofore  explained,  (ch.  2,  §^  27,  28,  29,) 
each  succeeding  stage  of  the  pleadings,  on  each  side, 
must  fortify,  or  go  in  support  of,  what  has  been  pre- 
viously pleaded  on  the  same  side(o).  Thus,  the 
replication  must  support  the  declaration ;  the  rejoin- 
der, the  plea  in  bar..  &c.  For  otherwise,  the  parties 
might,  at  pleasure,  change  one  cause  of  action,  or 
one  ground  of  defence,  for  another,  entirely  foreign 
to  the  first.  Thus,  if  to  debt  or  assumpsit,  the 
defendant  pleads  infancy,  and  to  a  replication  of 
necessaries  rejoins  duress,  payment,  release,  usury, 
&c.  ;  the  rejoinder  is  a  departure,  and  a  good  cause  of 
demurrer — though  either  of  the  matters  alleged  in 
it,  would  have  been  a  good  bar,  if  Jirst  pleaded  as 
such. 

^  67.  In  assumpsit,  brought  by  an  executor,  on 
an  alleged  promise  to  his  testator,  if  the  defendant 
pleads  the  statute  of  limitations ;  a  replication  al- 

(n)  3  Black.  Com.  310.  Co.  Litt.  303.  b.  304.  a.  Finch's 
Law,  50.  391.  Lawes'  PI.  162.  Bull.  N.  P.  17. 

(o)  lid.  2  H.  Black.  280.   1  Stra.  422.   Reg.  PI.  112. 

58 


453 

CHAP. 

VIII. 

PART 

III. 


OF  DEPARTURE. 

CHAP.  legmg  a  promise,  within  six  years,  to  the  plaintiff 
vin.  himself,  is  a  departure(jo)  :  The  promise  replied,  not 
PfnT  SomS  ^n  support  of  that  counted  upon.  To  justify 

a  recovery,  on  the  second  promise,  it  should  have 

been  declared  on. 

§  68.  If  the  defendant  pleads  in  bar  a  feoffment  in 
fee-simple,  and  in  his  rejoinder  varies  his  title,  or  the 
mode  of  acquiring  it — as  by  alleging  a  conveyance 
by  lease  and  release,  or  a  gift  in  tail ;  the  rejoinder 
is  a  departure^)  :  Since  it  substitutes  a  new  ground 
of  defence,  for  that  first  pleaded. 

^  69.  Thus  also,  when  the  matter,  first  alleged  as 
the  ground  of  action  or  defence,  is  pleaded  as  at  com- 
mon law,  any  subsequent  pleading  by  the  same  party, 
supporting  it  by  a  particular  custom,  is  a  departure(f). 
Ex.  gr.  If  in  covenant  broken,  against  an  apprentice, 
upon  his  indenture  of  apprenticeship,  the  plaintiff 
declares  in  common  form,  (i.  e.  as  at  common  law,) 
and  the  defendant  pleads  infancy ;  a  replication  of 
the  custom  of  London  (under  which  an  infant  may 
bind  himself,  as  apprentice),  is  a  departure ;  inas- 
much as  it  abandons  the  legal  foundation  of  the  suit, 
as  laid  in  the  declaration,  for  another,  distinct  from, 

(p]  Willes,  27.  1  Salk.  28.  3  East,  409.  3  B.  &  A.  631-2. 
3  Har.  &  McHen.  152.  5  Binn.  573.  4  McCord,  93.  1  Hen. 
&  Munf.  563.  &  vid.  1  B.  &  C.  248.— Cow/.  8  Mass.  R.  133. 
9  Pick.  493.  3  N.  Hamp.  R.  467. 

(q)   Co.  Litt.  304.  Bac.  Abr.  Pleas,  &c.  L. 

(r)  Finch's  Law,  392.  Bac.  Abr.  Pleas,  &c.  L.  1  Keb.  376. 
469.  512.  1  Lev.  81. 


OF  DEPARTURE. 

and  independent  of  it.     The  plaintiff  should  have    CHAP. 
declared  upon  the  custom.  mi. 

PART 

^  70.  Again,  a  declaration  or  plea,  asserting  a 
right  at  common  law,  is  not  fortified  by  the  subse- 
quent allegation  of  a  right  created  by  statute.  If 
therefore,  to  an  action  of  trespass,  laid  in  common 
form,  for  taking  the  plaintiff's  cattle,  the  defendant 
justifies  the  taking  of  them  damage  feasant,  by  dis- 
tress ;  and  the  plaintiff  replies,  that  the  defendant 
drove  them  out  of  the  county,  (which  is  not  actionable 
by  the  common  law,  though  made  so  by  the  statute 
52  H.  3,  and  1  &  2  Ph.  &  M.  c.  12)  ;  the  replica- 
tion is  a  departure^)  ;  for  the  same  reason,  as  in  the 
last  case.  The  plaintiff,  in  this  case,  should  have 
founded  his  action  upon  the  statutes. 


But  if  the  plaintiff  declares  upon  a  sta- 
tute, and  the  defendant  pleads  that  it  is  repealed  ;  a 
replication,  that  it  has  been  revived  by  a  subsequent 
act,  is  no  departure(^).  Here  the  replication  fortifies 
the  ground  taken  in  the  declaration.  For  the  revi- 
ving act  gives  renewed  effect  to  the  first,  on  which 
the  action  is  founded. 

§  72.  If,  in  covenant  broken,  the  defendant 
pleads  performance  in  general  terms,  and  the  plain- 
tiff replies  non-performance  of  a  particular  act  ;  a 
rejoinder,  that  the  defendant  was  ready  to  perform, 
and  tendered  performance,  and  that  the  plaintiff  pre- 

(s)  Bac.  Abr.  Pleas,  &c.  L.    3  Lev.  48.    Finch's  Law,  392-3. 
(t)   1  Lev.  81.     Bac.  Abr.  ub.  sup.—vid.  Yelv.  14.  15. 


OF  DEPARTURE. 

CHAP,  vented  it,  is  a  departure  from  the  plea(w)  :  Perform- 
vin.  ance,  and  tender  and  refusal,  being  distinct  and  incon- 
PmT  sistent  grounds  of  defence.  The  matter  rejoined 

-  •  should  have  been  pleaded  in  the   first  instance. 

Varying  in        £  73      j}ut  yarving  in  an  immaterial  point,  from 

an  iramate-  i  .7       & 

rial  point     yvhat  has  been  before  alleged   on  the  same   side,  is 

from  a  pre- 

no  departure  :  As  a  departure  consists  in  changing 
depart-  ^g  orjgmai  ground  or  foundation  of  the  action,  or 
defence.  Thus,  in  assumpsit  on  a  parol  promise,  if 
the  promise  is  laid  more  than  six  years  before  the 
commencement  of  the  suit,  and  the  defendant  pleads 
the  statute  of  limitations  ;  the  plaintiff  may  reply 
a  promise  within  six  years(V).  For  as  the  day,  laid 
in  the  declaration,  is  immaterial  ;  the  replication,  in 
stating  a  different  day,  cannot  be  considered  as  pre- 
senting a  new  ground  of  action. 

^  74.  So  too,  when  the  promise  is  laid,  as  in 
the  last  case,  and  the  place  laid  in  the  declaration  is 
immaterial,  a  replication,  (in  answer  to  a  plea  of 
the  statute  of  limitations)  of  a  different  place,  in 
order  to  bring  the  case  within  .the  saving  in  favor  of 
persons  '  beyond  the  seas,'  is,  for  the  same  reason, 
no  departure(w). 

(u)   Co.  Lilt.  304.  a.     Bac.  Abr.   Pleas,  &c.   L.     1    Sid.    10 
Vid.  14  Mass.  R.  103. 

(v]  2  Saund.  5  b.  (n.  3.)  1  Ib.  299.  (n.  6.)  1  Salk.  222.  223. 
Cro.  Car.  245.  333.  1  Lev.  110.  143.  1  Stra.  21.  1  Keb.  566. 
578.  10  Mod.  348.  16  East,  420.  9  Pick.  494. 

(w)   1  Lev.  143.     10  Mod.  349. 


OF  DEPARTURE.  457 

^  75.     When  the  gravamen,  or  cause  of  action,    CHAP. 
is  stated  generally  in  the  declaration,  and  the  defend-      vm. 
ant  pleads  an  evasive  plea(14),   a  more   particular     Ptn.T 
statement  of  the  cause  of  action,  by  way  of  new  as- 
signment,    in    the    replication,  is    no    departure(V).  ^nmenVis 
For  a   new  assignment,  when  properly  made,  does  ["u°e.epa 
not  substitute  a  new  cause  of  action,  for  that  alleg- 
ed in  the  declaration  ;  but  merely  states  the  origi- 
nal one  with  more  particularity,  in   order  to  repel 
the  effect  of  the  plea — or,  (as   may   sometimes   be 
necessary  to  the   same  end)  assigns,  as  a  substantive 
ground  of  damages,  what  the  declaration  has  alleg- 
ed only  as  aggravation. 

§  76.  Thus  if,  to  an  action  of  any  kind,  the  de- 
fendant pleads  in  bar  a  former  recovery,  for  the  same 
cause,  when  in  fact  it  Wcis  for  a  different  cause  of 
the  same  kind ;  the  plaintiff  may,  by  a  new  assign- 
ment, state  more  particularly  the  specific  cause  of 
action,  on  which  his  complaint  is  founded,  and  show 
that  it  is  a  different  one  from  that  to  which  the  plea 
applies(y). 

(x)  3  Black.  Com.  311.     Bull.  N.  P.  17.     Lawes'  PI.  164-5. 
3  Wils.  20.     2  Saund.  5.  a.  b.  (n.  3.)     Willes,  218. 
(?/)   lid.     2  Chitt.  PI.  653.  n.  (e.)   9  Wentw.  10. 

(14)  Any  plea,  which  makes  a  new  assignment  necessary,  is 
called  an  evasive  plea — i.  e.  as  I  understand  it,  a  special  plea, 
which,  though  apparently  avoiding  the  whole  gravamen,  or  ground 
of  complaint,  as  laid,  generally,  in  the  declaration,  does  still  not 
avoid  the  particular  ground  or  cause,  on  which  the  plaintiff  ac- 
tually founds  his  right  of  recovery ;  as  in  the  examples,  which 
follow  in  the  text.  (See  also  ch.  6,  §  110,  and  note  14). 


PART 
III. 


OF  DEPARTURE. 

CHAP.        §  77.    Thus  also,  if  to  an  action  against  a  sheriff, 
vin.     for  an  escape,  he  pleads  recaption  on  fresh  suit,  be- 
fore action  brought,   (which  is  a  good   defence  for 
.  a  negligent,  though  not  so  for  a  voluntary  escape)  ; 
the  plaintiff  may,  by  way  of  new  assignment,  re- 
ply a  voluntary  escape  ;  and  it  will  be  no  departure. 
It  fortifies  the  declaration^). 

^  78.  By  the  common  law,  departure  is  a  good 
cause  of  general  demurrer(a).  Some,  however, 
have  supposed  that  under  the  statute  4  &  5  Ann. 
c.  16,  it  is  aided,  except  on  special  demurrer(6). 
But  this  opinion  seems  clearly  opposed  to  the  au- 
thorities, last  before  cited ;  and  on  principle,  the 
fault  appears  to  be  matter  of  substance  :  Inasmuch 
as  it  is  an  entire  abandonment  of  the  ground  of  ac- 
tion, or  defence,  first  taken  by  the  pleader,  and  for 
which  he  has,  by  law,  no  right  to  substitute  any 
other.  And  see  2  Saund.  84,  d.  (n.  1),  where  Mr. 
Serjeant  Williams  retracts  the  opinion,  that  the  fault 
is  but  formal ;  though  he  had  previously  advanced 
that  opinion  in  1  Saund.  117,  (n.  3). 

§  79.  Yet  a  verdict,  in  favor  of  him  who  makes 
a  departure,  cures  the  fault,  if  the  matter,  pleaded 
by  way  of  departure,  is  a  sufficient  answer,  in  sub- 

(z)  1  Vent.  211.   217.     2  T.  R.  126.     Bac.  Abr.  Escape,  H. 

(a)  Com.  Dig.  Pleader,  F.  14.  2  Wils.  96.  1  Ib.  122. 
Willes,  638.  4  T.  R.  504.  2  Saund.  84.  d.  (n.  1.)  1  Ib.  117. 
1  Salk.  221-2.  T.  Ray.  22.  94.  1  Stra.  422.  10  Johns.  R. 
262.  16  Mass.  R.  1.  2  N.  Hamp.  R.  180.  308. 

(6)  Com.  Dig.  Pleader,  F.  0.  1  Saund.  117.  (n.  3.)  1  Chitt. 
PI.  623.  n.  (e.) 


OF  DEPARTURE.  459 

stance-,  to  what  is  before  pleaded  by  the  adverse  CHAP. 
party  ;  i.  e.  if  it  would  have  been  sufficient,  provided  vm. 
he  had  pleaded  it,  in  the  first  instance(c).  For  after 
such  a  finding,  it  will  necessarily  appear,  from  the 
whole  record  taken  together,  that  he  is,  in  law,  enti- 
tled to  judgment.  Ex.  gr.  The  defendant,  in  as- 
sumpsit,  pleads  infancy;  the  plaintiff  replies  neces- 
saries ;  and  defendant  rejoins  a  release :  Now,  if 
issue  is  taken  upon  the  rejoinder,  and  a  verdict  found 
for  the  defendant,  he  must  have  judgment.  For  by 
the  finding,  it  appears  conclusive  upon  the  record, 
that  there  is  no  right  of  action :  Whereas,  upon  a 
demurrer  to  the  rejoinder,  this  result  could  not  thus 
appear.  For  the  release  being  ill  pleaded ;  a  de- 
murrer would  not  confess  it.  (Vid.  Demurrer,  ch. 
IX,  §4.) 

(c)   1  Lill.  Ab.  444.    T.  Ray.  86.    2    Saund.84.  Tb.  84.  d.  (n. 
].)   1  Keb.  566.  1  Lev.  110.  Tidd,  689.   1  Chitt.  PI.  623. 


CHAPTER  IX. 


OF    DEMURRER. 

PART  I. — Of  Demurrer  to  the  Pleadings. 

CHAP.        SECTION  1.  To  demur,  is  to  rest,  or  pause;  and 

ix.       the  party  who  demurs  in  law,  to,  (or  upon),  his  ad- 

PART  i.  versary's  pleadings,  rests,  or  pauses,  upon  it,  as  re- 

quiring  no  answer,  by  reason  of  its  supposed  legal 

insufficiency  (d). 

^  2.  A  demurrer,  as  has  before  been  shown,  (ch. 
2,  §  43),  is,  in  strictness,  no  plea(e)  ;  since  it  neither 
asserts  nor  denies  any  matter  of  fact,  but  merely 
advances  a  legal  proposition,  viz.  that  the  pleading, 
demurred  to,  is  insufficient  in  law,  to  maintain  the 
case  shown  by  the  adverse  party.  It  may  be  taken 
by  either  party,  and  to  any  part  of  the  pleadings, 
until  issue  joined(y). 

^  3.  A  demurrer,  though  frequently  called  '  an 
issue'  in  law(^),  may,  with  more  propriety,  be  said 

(d)  Reg.  PI.  125.  3  Black.  Com.  314. 

(e)  3  Wils.  292.  Bac.  Abr.  Pleas,  &c.  N.  1. 

(/)   Co.  Litt.  72.  a.    Reg.  PI.  126.    Bac.  Abr.  Pleas,  &c.  N. 
1.  Com.  Dig.  Pleader,  Q.  6.    1  Lill.  Ab.  435. 
(g)  3  Black.  Com.  314.  316.  Co.  Litt.  71-2. 


OF  DEMURRER. 

to  tender  such  an  issue.     For  the  issue  is  not  form-    CHAP. 
ed,  until  there  is  a  joinder  in  demurrer  ;  which  af-      ix. 
firms  the  legal  sufficiency  of  the  allegations  demurred  PART  i. 
to,  in  contradiction  of  the  demurrer,  which  affirms 
their  legal  insufficiency  (ti). 

&  4.  As   the  office  of  a  demurrer  is  to  deny,  not  What  facts 

3  •'it  confesses. 

the  truth,  but  only  the  legal  sufficiency,  of  the  allega- 
tions demurred  to ;  it  therefore  admits  all  such  facts, 
alleged  by  the  adverse  party,  as  are  well  pleaded(i) ; 
and  refers  the  question  of  law,  arising  upon  them, 
to  the  court. 

§  5.  But  a  demurrer  regularly  admits  no  other 
facts,  than  those  which  are  well  pleaded ;  and  by  the 
common  law,  which  does  not  distinguish  between  the 
offices  of  a  demurrer,  assigning  a  special  cause,  and 
one  assigning  none,  a  demurrer  of  either  kind  con- 
fesses no  other  allegations,  in  general,  than  such 
as  are  sufficient,  both  in  substance  and  form(k). 
For  facts,  insufficient  in  substance,  cannot  affect  the 
right  of  the  cause  ;  and  material  facts,  if  ill  pleaded, 
and  demurred  to,  even  generally,  are,  by  the  com- 
mon law,  as  unavailing,  as  if  they  wrere  altogether 
immaterial. 

(h)  2  Chitt.  PI.  678.  682.  3  Black.  Com.  App.  No.  Ill,  §  6,  p. 
xxiv. 

(i)  1  East,  636.  Bac.  Abr.  Pleas,  &c.  N.  1.3.  Co.  Litt.  71. 
b.  1  Saund.  338.  (n.  3.)  Hob.  233.  Com.  Dig.  Pleader,^.  5.  6. 
1  Lill.  Ab.  437-8. 

(k)  Tlob.  233.   Lawcs'  PI.  167.  3  Salk.  122.    1  Chitt.  PI.  640. 
Com.  Dig.  Pleader,  Q.  5.   Bnc.  Abr.  Pleas,  &c.  N.  3. 
59 


462 


OF  DEMURRER. 


Kinds  of. 


§  6.  The  rule,  that  a  demurrer  does  not  confess 
facts  ill  pleaded,  means  only,  that  it  does  not  confess 
them,  to  the  intent  of  concluding  the  party  demur- 
ring, by  way  of  estoppel,  in  any  other  suit,  or  of  affect- 
ing the  determination  of  the  principal  case. 

§  7.  The  pleading  of  a  party  may  be  ill,  either 
in  not  alleging  sufficient  matter,  or  in  alleging  what 
is  sufficient,  in  an  informal  or  improper  manner  (I). 
And  in  neither  case,  is  the  matter,  which  is  pleaded, 
confessed,  according  to  the  rule  of  the  common  law, 
even  by  a  general  demurrer.  For  by  the  common 
law,  advantage  might,  in  general,  be  taken  of  de- 
fects in  form,  by  a  demurrer  of  the  same  kind,  as 
would  reach  defects  in  substance (m)  :  Though  now, 
in  consequence  of  statute-enactments,  there  exists 
an  important  difference,  as  regards  the  manner  of 
demurring,  between  formal  and  substantial  faults  in 
pleading. 

^  8.  To  explain  this  difference,  it  must  be  ob- 
served, that  demurrers  are  of  two  kinds — general, 
and  special :  The  latter  being  called  '  special',  be- 
cause they  assign  some  special  cause  of  demurrer ; 
while  the  former  assign  none(w).  But  at  common 
law,  the  distinction,  between  the  one  and  the  other, 
consisted  in  the  mere  form  of  "demurring  ;  since  the 
office  and  effect  of  both,  as  has  been  before  sug- 

(/)  Hob.  164.  Bac.  Abr.  Pleas,  &c.  Inlrod. 
(m)  Lawes'  PI.  167-8.   Com.  Dig.  Pleader,  Q.  5. 
(»)  Co.  Litt.  72.  a.    Bac.  Abr.  Pleas,  &c.  N.  5.    Lawes'  PI. 
167.  168.   2  Bulstr.  267. 


OF  DEMURRER.  463 

gested,  were  the  same  :    Faults,  in  mere,  form,  being    CHAP. 
reached,  at  common  law,  as  well  by  a  general,  as  by       ix. 
a  special  demurrer(l).  PART  i. 

§  9.     But  by  the  statute  27  Eliz.  c.  5,  §  1,  on  An^5ch- 
demurrer  to  the    pleadings,   on  either    side,  (other  Ditferent 

uses  of  gen- 

than  dilatory  pleas),   all    defects  and  imperfections,  gr^ci^e. 
merely  formal,   except  such    as    are   expressly  and  ™r[|"s's"ant~ 
specially  '  set  down?,  and  assigned  for  cause  of  de-  "A^"* 
murrer,  are  aided,  and  may,  by  the  court,  be  amend- 
ed(o).     By  the  operation  of  this  statute,  all  mere- 
ly formal    defects  in    pleading,  except    in    dilatory 
pleas,  are  aided,  on  general  demurrer, 

^10.  But  doubts  having  arisen,  upon  the  con- 
struction of  this  statute,  whether  certain  particular 
defects  in  pleading  were  to  be  deemed  formal,  or 
substantial ;  the  statute  4  &  5  Ann.  c.  16,  was 
enacted,  partly  in  explanation,  and  partly  in  exten- 
sion, of  the  healing  operation  of  the  former  act — 
and  also  expressly  specifying  a  variety  of  particular 

(o)  Bac.  Abr.  Pleas,  &c.  N.  6.  Lawes'  PI.  167-8-9.  Com. 
Dig.  Pleader,  Q.  7. 


(1)  To  this  proposition  there  appears  to  have  been  a  single  ex- 
ception, and  but  one,  viz.  in  the  case  of  a  demurrer  for  duplicity ; 
for  taking  advantage  of  which,  the  demurrer,  it  seems,  must,  by 
the  common  law,  have  been  special,  (3  Salk.  122.  Comb.  297. 
Bac.  Abr.  Pleas,  &c.  N.  6.)  The  reason  of  this  exception  may, 
perhaps,  have  been  the  peculiarity  of  this  particular  fault ;  which 
consists  neither  in  want  of  substance,  nor  in  the  absence  of  techni- 
cal form,  in  the  pleader's  averments  ;  but  in  the  statement  of  *i»- 
pcrfltious  matter — of  more  substance  than  is  necessary. 


464  OF  DEMURRER. 

defects,  which,  though  before  deemed  substantial, 
are,  by  this  latter  act,  virtually  converted  into  mat- 
ters of  form,  and  thus  aided  on  general  demur- 
rer(p)(2).  The  statute  of  Elizabeth,  then,  requires 
demurrers  to  be  special,  for  formal  defects,  in  gen- 
eral ;  and  that  of  Anne,  after  re-enacting  the  same 
general  provision,  extends,  or  applies  it  to  certain 
particular  defects,  expressly  named  in  the  act. 

^11.  These  statutes,  however,  relate  to  plead- 
ings in^  civil  actions  only — being  confined,  in  their 
terms,  to  proceedings  in  any  '  action  or  suit ;'  and 
the  former  contains  an  express  proviso,  that  it  shall 
not  extend  to  criminal  proceedings^).  Formal  de- 
fects, in  indictments  and  other  criminal  prosecutions, 
remain,  therefore,  proper  subjects  of  general  demur- 
rer, as  at  common  law.  The  statute  of  Anne  also 
contains  a  proviso,  that  it  shall  not  extend  to  actions 
on  penal  statutes,  which  are  strictly  civil  suits.  But 
this  last  proviso  is  repealed  by  the  statute  4  Geo.  2, 
c.  26,  §  4(r). 

(p]  Bac.  Abr  Pleas,  &c.  N.  6.  1  Lill.  Ab.  439.  440.  1 
Chitt.  PI.  641-3. 

(g)  Bac.  Abr.  Pleas,    &c.  N.  6.     Com.  Dig.  Pleader,  Q.  7. 
(r)  Willes,  601.     Tidd,  822.      1  Chitt.  PI.  642. 

(2)  The  defects  specifically  enumerated,  and  cured,  by  this 
latter  statute,  are  immaterial  traverses — the  omission  of  profert 
of  deeds,  &c. — or  of  the  words  vi  et  armis,  and  contra  pacem — 
or  of  a  verification  per  recordum — or  of  a  prout  patet  per  re- 
cordum. All  these  defects  are  therefore  aided  by  this  statute,  on 
demurrer,  unless  specially  assigned  for  cause  of  demurrer. 


OF  DEMURRER. 

§  12.  There  is  also,  in  civil  cases,  as  has  before    CHAP. 
been  suggested,  one  class  of  pleas,  to  which   these       ix. 
statutes  do  not  extend,  viz.   pleas  in  abatement,  or  PART  i. 

rather,  dilatory  pleas,  generally(s).     For  these  pleas,  

not  being  favored  in  the  law,  are  held  not  to  be 
within  the  spirit  of  these  enactments  ;  the  object  of 
which,!  as  expressed  in  the  title  of  the  statute  of 
Elizabeth,  is  for  the  'furtherance  of  justice?  (i).  In 
dilatory  pleas,  therefore,  defects  in  form  are  still 
reached  by  general  demurrer.  The  same  rule  holds, 
and  for  the  same  reason,  of  demurrers  to  writs  of 
error,  for  duplicity,  in  assigning  errors  in  fact,  and 
in  law,  together (u). 

§13.  As  the  general  enactments,  above  referred 
to,  in  these  two  statutes,  are  precisely  similar,  even 
to  the  letter  ;  (those  in  the  statute  of  Anne  being 
only  a  repetition  of  the  first  section  of  that  of  Eliz- 
abeth) ;  it  will  be  sufficient — so  far  as  regards  the 
different  natures  and  offices  of  general  and  special 
demurrers — to  explain  the  provisions  of  the  statute 
of  Elizabeth  only  :  That  act  being  the  original  foun- 
dation of  the  important  distinction,  which  now  exists 
in  the  English  law,  between  the  uses  and  effects  of 
the  two  kinds  of  demurrer. 

§14.  It  has  been  observed,  in  a  former  chapter 
(ch.  3,  §  1),  that  to  all  good  pleading  there  are  two 

(a)  Ld.  Ray.  337.  1015.  1  Salk.  194.  Tidd,  686.  3  T.R. 
186.  1  Chitt.  PI.  456.  2  Ib.  679.  2  M.  &  S.  485.  1  Mass. 
R.  501-2. 

(0  Hob.  232. 

(«)  Sty.  69.     Carth.  338-9.     Bac.  Abr.  Error,  K.  2. 


^QQ  OF  DEMURRER. 

CHAP,    requisites  : — 1 .    That   the  matter  pleaded    be   suffi- 
ix.       cient ;  and   2.   that  it  be  alleged,  according  to   the 
PART  i.  forms  of  law(V).     The  omission  of  either  of  these 
requisites  is,  therefore,   a   good   cause   of  demurrer. 
But  as,  under  the  above-mentioned  statute  of  Eliza- 
beth, defects   of  the  latter  kind  can  be  reached   only 
by  special  demurrer  ;  it  becomes  necessary  to  distin- 
guish,   correctly,    between    the    two    kinds    of   de- 
murrer. 


§15.  A  general  demurrer  is  one,  not  specially 
assigning  any  particular  cause  of  demurrer,  but  sim- 
ply asserting,  in  general  terms,  the  legal  insuffi- 
ciency of  the  pleading,  to  which  it  applies  :  A  spe- 
cial demurrer  is  one,  which  assigns,  and  points  out 
specially,  some  particular  cause,  or  causes,  for  de- 
murring^). 

§16.  But  to  constitute  a  special  demurrer,  with- 
in the  statute  of  Elizabeth,  some  specific  cause  of 
demurrer  must  not  only  be  assigned,  but  must  be 
assigned  and  set  out  specially  (x).  The  assignment 
of  a  cause,  in  general  terms,  does  not  answer  the 
requisition  of  the  statute  ;  which  is,  that  the  cause 
be  '  specially  and  particularly  set  down.'  Hence,  a 
demurrer  for  duplicity,  assigning  for  cause,  merely 
that  the  pleading  demurred  to,  '  is  double,  and  infor- 
mal,' is  considered  as  a  general  demurrer,  and  will 

(v)   Hob.  164.     Bac.  Abr.  Pleas,  &c.  Introd.     Co.  Litt.  303. 

(w)  Co.  Litt.  72.  a.  Bac.  Abr.  Pleas,  &c.  N.  5.  Lawes'  PI. 
167. 

(x)  1  Wils.  219.  Bac.  Abr.  Pleas,  &c.  N.  5.  1  Show.  250. 
Comb.  297.  2  Ld.  Ray.  802. 


OF  DEMURRER.  467 

not  reach  the   fault  mentioned.     The   demurrer,  for    CHAP. 
such  a  cause,  should   point  out,   specially  and  pre-      ix. 
cisely,  where,  and  in  what  particular,  the  duplicity  PART  i. 
consists(y).      And   the   same    particularity  is   neces- 
sary, in  all  demurrers  for  faults  in  mere  form.     For 
the  object  proposed,  in  requiring  a  demurrer,  in  any 
case,  to  be  special,  is,  that  the  precise  point,  in  which 
the   fault,  in  the  pleading  demurred  to,  consists,  be 
designated  as  cause  of  demurrer. 

§17.  The  difference  between  matter  of  form,  and  JJ 
matter  of  substance,  in  general,  under  the  statute  of  fu 
Elizabeth,  as  laid  down  by  Lord  Hobart,  is,  that  that, 
1  without  which  the  right  doth  sufficiently  appear  to 
the  court,  is  form  ;'  but  that  any  defect,  '  by  reason 
whereof   the  right  appears  not,''  is  a  defect  in  sub- 
stance.(z).     But  this  description  is  too  general,  to  be 
easily  applied  in  particular  instances. 

§  18.  A  distinction,  somewhat  more  definite,  is, 
that  if  the  matter  pleaded  be  in  itself  insufficient, 
without  reference  to  the  manner  of  pleading  it,  the 
defect  is  substantial ;  but,  that  if  the  only  fault  is  in 
the  form  of  alleging  it,  the  defect  is  but  fwmal(a). 
Thus,  the  omission  of  a  consideration,  in  a  declara- 
tion in  assumpsit — or  of  the  performance  of  a  con- 
dition precedent,  when  such  a  condition  exists — of  a 
conversion,  or  property  in  the  plaintiff,  in  trover — of 
science  in  the  defendant,  in  an  action  for  mischief 

(j/)  Comb.  297.   1  Salk.  219.   1  Show.  250.   Com.  Dig.  Pleader, 
Q.  9.  Hob.  232.  2  Mass.  R.  283-4. 
(*)  Hob.  233. 
(a)   Doug.  683. 


468 


Use  of 
special 
demurrer. 


OF  DEMURRER. 

done  by  his  dog — of  malice,  in  an  action  for  mali- 
cious prosecution,  &c.  are  all  defects  in  substance. 
On  the  other  hand,  duplicity — a  negative  pregnant — 
argumentative  pleading — a  special  plea,  amounting  to 
the  general  issue — omission  of  day,  when  the  time 
is  immaterial — of  a  place,  in  transitory  actions,  &c. 
are  only  faults  in  form (6).  For  the*  defect,  in  the 
former  class  of  examples,  is  in  the  matter  pleaded  ; 
while  the  fault  in  the  latter,  is  only  in  the  manner  of 
pleading. 

^  19.  A  special  demurrer  reaches  no  other  faults 
in  form,  than  those  which  are  specially  assigned  for 
cause  of  demurrer(c).  For  as  to  all  others,  it  is, 
in  effect,  a  general  demurrer ;  under  which,  no  ad- 
vantage can  be  taken  of  imperfections,  merely  for- 
mal. 

^  20.  But  under  a  special  demurrer,  advantage 
may  be  taken,  as  well  of  all  substantial  defects, 
though  not  assigned  for  cause,  as  of  those  formal 
faults,  which  are  so  assigned(d)  ;  and  this,  for  the 
reason  last  before  stated,  viz.  that  as  to  faults,  not 
so  assigned,  a  special  demurrer  operates  precisely 
like  a  general  one. 

^21.  It  has  already  been  stated,  that  by  the 
common  law,  a  demurrer  confesses  no  other  facts, 

(6)  Bac.  Abr.  Pleas,  &c.  N.  5.  6.  Com.  Dig.  Pleader,  Q.  7. 
10  Co.  95.  a.  2  Stra.  694. 

(c)  Bac.  Abr.  Pleas,  &c.  N.  5.    10  Co.  88.  Com.  Dig.  Plead- 
er, Q.  8. 

(d)  lid.  6  Greenleaf,  426. 


OF  DEMURRER. 

alleged  on  the  other  side,  than  such  as  arc,  in  all    CHAP. 
respects,  well   pleaded — that   is,   such  as  are  suffi-      ix. 
cient,  both  in  matter  and  form.     And  under  the  stat-  PART  I. 
ute  27  Eliz.  the   rule,  in  regard  to  insufficient  mat- 
ter,  is  the  same  as  at  common  law(e).     But  under 
this  statute,  a  demurrer  confesses  not  only  all  suffi- 
cient matter,  well  pleaded,  as  it  does  by  the  common 
law  ;  but  also,  all  material  facts,  informally  pleaded, 
except  such  as  are  expressly  and  specially  assigned 
for  cause  of  demurrer^). 

^  22.  As  under  this  statute,  defects  in  form  are 
aided,  unless  specially  pointed  out  in  a  demurrer  • 
it  follows,  that  all  such  defects  are  now  aided,  by 
the  adverse  party's  pleading  over,  instead  of  demur- 
ring specially.  In  this  way,  therefore,  formal  de- 
fects in  the  declaration  are  aided,  by  the  defendant's 
pleading  in  bar,  either  by  way  of  traverse,  or  in 
avoidance  ;  in  the  same  manner,  those  in  the  plea 
are  cured  by  a  replication ;  and  the  same  rule  ap- 
plies to  all  the  subsequent  pleadings(g).  But  de- 
fects in  substance  are  not  thus  aided(/i)(2  a). 

(e}  Lawes'  PI.  168.  Bac.  Abr.  Pleas,  &c.  N.  3.  Com.  Dig 
Pleader,  Q.  6.  2  Salk.  561. 

(/)  Bac.  Abr.  Pleas,  &c.  N.  6.  Com.  Dig.  Pleader,  Q.  7. 
Lawes'  PI.  167-8.  Hob.  233. 

(g-)  Bac.  Abr.  Pleas,  &c.  Inlrod.  Com.  Dig.  Pleader,  E.  37. 
7  Co.  25,  a.  8  Ib.  120.  b.  Co.  Litt.  303.  b.  2  Salk.  519.  14 
Mass.  R.  162. 

(h)  lid. 

(2  a)    That  is,  by  the   adverse   parly's   merely  pleading  over. 
But  if  he  expressly  admits,  in  his  pleading,  the   matter  of  sub- 
60 

'    /;• 


OF  DEMURRER. 

CHAP.  %  23.  From  the  principles  already  laid  down,  it  is 
ix.  obvious  that  a  demurrer  aids  no  other  pleading,  than 

PART  i.  it  confesses  to  be  true.  For  what  is  not  confessed  by 
it,  clearly  cannot  avail  the  adverse  party,  on  the  issue 
tendered  by  the  demurrer ;  since  the  question  of  law, 
presented  by  the  issue,  can  arise  only  upon  facts  con- 
fessed (i). 

§  24.  And/as  it  confesses  not  what  is  ill  pleaded, 
it  of  course  does  not  confess  any  averment,  contra- 
dicting what  before  appears  certain,  on  the  record. 
Thus,  if  a  party  having  admitted  an  allegation  on  the 
other  side,  afterwards  makes  an  averment  inconsis- 
tent with  it,  a  demurrer  does  not  confess  the  latter 
averment(/c). 

§  25.  On  a  similar  principle,  a  demurrer,  though 
general,  never  confesses  an  allegation,  which,  it  ap- 
pears upon  the  face  of  the  pleadings,  that  the  pleader 
is  estopped  to  make  ;  as  if,  having  pleaded  or  confess- 
ed a  record,  to  which  he  is  a  party,  he  afterwards 
makes  an  averment,  contradicting  or  impugning  it. 
Thus,  if  to  debt  or  scire  facias,  on  judgment,  the 
defendant  pleads  any  thing  in  denial  of  the  original 
right  of  action,  on  which  the  judgment  was  found- 

(«)  2  H.  Black.  205.  206. 

(*)  Com.  Dig.  Pleader,  Q.  5.  6.     1  Sid.  10. 

stance  omitted  by  the  other  side,  such  omission  is  supplied  and 
cured.  (Anlet  c.  3,  §  192— and  Com.  R.  140.  10  Wheat. 
287.) 


OF  DEMURRER. 

ed(7) — or  if,  after  a  judgment  quod  computet,  in  an    CHAP. 
action  of  account,  he  pleads  any   matter,  showing       ix. 
that  he  ought  not  to  account(m)  ;  a  demurrer  does  PART  i. 
not  confess  the  plea  :     Because  the  latter  impugns 
the  judgment.     And  the  plea,  in   this  case,  is  ill  in 
substance.     For  it  is  not  the  form  of  the  averment, 
but  the  making  of  it,  in  any  form,  that  constitutes 
the   fault.     In   such    cases,  however,   the  party,  in 
whose    favor    the  matter  of  the  estoppel   operates, 
may,  instead  of  demurring,  reply  the  matter  special- 
ly, and  in  this  way  avail  himself  of  it(n). 

§  26.  Nor  does  a  demurrer,  of  either  kind,  con- 
fess facts,  however  material,  the  pleading  of  which 
makes  a  departure(o). 

^  27.  An  averment  of  any  thing,  naturally  or 
legally  impossible,  is  not  confessed  by  a  demur- 
rer(/?).  The  averment  being,  upon  the  face  of  it, 
an  absurdity. 

^  28.  So  also,  allegations  which  are  impertinent, 
or  immaterial,  are  not  confessed,  by  a  demurrer^). 
For  what  a  party  cannot  contest,  he  does  not  con- 
fess, by  leaving  it  unanswered. 

(/)  1  Saund.  219.  c.  (n.  8.)  Willes,  13.  Lawes'  PI.  170.  3 
T.  R.  693.  1  Salk.  310.  6  Mod.  308. 

(m)   3  Wils.  73.  101.  113.  114.     Hetl.  114.     Cro.  Car.  116. 

(n)  Willes,  13.  Lawes'  PI.  171. 

(o)  Com.  Dig.  Pleader,  F.  10.  2  Wils.  96.  1  Ib.  122.  Willes, 
638.  2  Saund.  84.  d.  (n.  1.)  T.  Ray.  22.  94.— Ante,  ch.  8,  §  79. 

(;>)   1  Sid.  10.     Com.  Dig,  Pleader,  Q.  6.     Lawes'  PI.  168. 

(q)  2  Salk.  561.    Lawes'  PI.  168.     Bac.  Abr.  Pleas,  &c.  N.  3. 


472 


OF  DEMURRER. 


CHAP. 


§  29.     Nor  does  a  demurrer  ever  confess  matter 
ix.      of   law    deduced,  by    either    party,  from    the    facts 
PARTI,    pleaded   by  him — as  the "  pront  ei   bene   licuit,  in  a 
plea    of  justification.     For    such    matter    is    not    a 
proper    subject    of   a    substantive    averment,    or    of 
traverse,  or  avoidance,  (vid.  ch.  7,  ^  48)  ;  and  con- 
sequently, not  a  subject  of  admission  in  the  plead- 
ings :     It  being  exclusively  the  province  of  the  court, 
to  apply  the  law  to  the  facts  alleged(r). 

§  30.  When  an  issue  in  fact,  and  an  issue  in 
law,  are  joined  in  the  same  cause  (as  they  may  be, 
to  different  parts  of  the  declaration,  plea,  &c.),  it  is 
in  the  discretion  of  the  court,  which  of  the  two  is- 
sues shall  be  first  determined^).  In  practice, 
however,  the  more  usual  course  is,  to  determine 
first  the  issue  in  law  :  Inasmuch  as  the  jury  can 
then,  on  the  issue  in  fact,  assess,  at  once,  the  whole 
damages  on  both  issues,  if  both  are  determined  .in 
the  plaintiff's  favor— which  could  not  be  done,  if 
the  issue  in  fact  were  first  determined. 

^  31.  After  an  issue  in  fact  joined,  as  by  a  con- 
clusion to  the  country,  on  one  side,  and  the  similiter 
added,  on  the  other,  there  can  be  no  demurrer^). 
For  the  issue  joined  puts  an  end  to  the  altercations 
of  the  parties,  on  the  record  ;  and  by  joining  in  it, 

(?•)  Hob.  56.      Vid.  Com.  Dig.  Pleader,  Q.  5.  6. 

(»)  Co.  Litt.  72.  a.  125.  b.  Palm.  517.  Bac.  Abr.  Pleas,  &c. 
N.  1.  1  Saund.  80.  (n.  1.) 

(0  Com.  Dig.  Pleader,  Q.  6.  1  Show.  213.  Bac.  Abr.  Pleas, 
&c.  N.  2. 


OF  DEMURRER.  473 

the    parties    have    placed   the   controversy  upon   a    CHAP. 
question  of  fact  involved  in  the  issue,  and  referred  it      ix. 
to  the  jury.  PART  *• 


§  32.  There  cannot  be  a  demurrer,  on  either  £enrer^rur_ 
side,  to  a  demurrer,  on  the  other(w)  ;  but  the  party,  j^e£ot  al" 
to  whose  pleading  a  demurrer  is  taken,  must  join 
in  it.  And  though  a  demurrer  be  informally  taken  ; 
(as  by  praying  an  improper  judgment)  ;  the  adverse 
party  must  still  join  in  it.  For  being  sufficient  to 
present  the  whole  record  to  the  court,  for  its  judg- 
ment ;  the  court  must  render  such  a  judgment  upon 
it,  as  the  state  of  the  pleadings  requires,  without 
reference  to  the  manner,  in  which  judgment  is  pray- 
ed, or  the  form,)  in  which  the  demurrer  is  express- 
ed^). 

§  33.  If  then,  the  party,  to  whom  a  demurrer  is 
tendered,  demurs  to  it,  or  refuses  to  join  in  it  ;  he 
makes,  in  either  case,  a  discontinuance  of  his  action, 
or  his  defence,  as  the  case  may  be(«0)  :  That  is,  if 
the  plaintiff  thus  demurs,  he  discontinues  his  ac- 
tion :  If  the  defendant  does  so,  he  discontinues  his 
defence.  For  a  refusal  or  omission,  on  one  side,  to 
join  in  a  demurrer  on  the  other,  has  the  same  effect 
as  an  omission  to]  plead,  when  pleading  is  necessary. 
The  omission,  by  either  party,  is  therefore  a  virtual 
abandonment  of  his  side  of  the  case. 

,(H)  Com.  Dig.  Pleader,  Q.  3.  Bac.  Abr.  Pleas,  &c.  N.  2. 
Lawes'  PI.  172.  Comb.  306.  1  Ld.  Ray.  20.  1  Salk.  219. 

(i>)   3  Lev.  222. 

(w)  1  Salk.  219.  Bac.  Abr.  Picas,  &c.  N.  2.  Comb.  306. 
Com.  Dig.  Pleader,  Q.  3. 


474  OF  DEMURRER. 

§  34.  But  according  to  a  dictum  of  Ld.  Holt(x), 
there  is  a  single  exception  to  the  rule,  that  there  can- 
not be  a  demurrer  to  a  demurrer  :  viz.  that  where  a 
demurrer  to  a  plea  in  abatement  is  not  apposite,  the 
demurrer  may  itself  be  demurred  to.  But  the  reason 
of  such  an  exception  is  certainly  not  obvious  ;  and 
Ld.  Holt's  opinion  appears  not  to  be  recognized  as 
law  by  the  later  authorities. 

§  35.  A  demurrer,  and  joinder  in  demurrer,  both 
usually  add  a  verification,  before  praying  judg- 
ment^) :  But  a  verification  appears  to  be  unneces- 
sary^) ;  as  no  proof  is  assumed,  by  either  of  the 
parties. 

itoksmurrer       %  ^>.  A  demurrer,  in  whatever  stage  of  the  plead- 
whoiueshthe  in§s  **  ls  taken,  reaches  back,  in  its  effect,  through 
record.        ^g  Wh0le  record,  and,  in  general,  attaches  ultimate- 
ly upon  the  first  substantial  defect  in  the  pleadings, 
on  which  ever  side  it  may  have  occurred — defects  in 
substance  not   being   aided   by  the  adverse    party's 
mere  pleading  over,  as  formal  defects  are(#). 

^  37.  Hence,  though  the  parties  join  in  demur- 
rer, upon  any  one  particular  point,  in  any  stage  of 

(x)  Comb.  306. 

(y)  2  Chitt.  PI.  679.  682. 

(*)   1  Leon.  24.     Lawes'  PI.  172. 

(a)  Hob.  56.  &  (n.  4.)  by  Williams.  5  Co.  29.  a.  Com. 
Dig.  Pleader,  Q.  7.  M.  1.  2.  2  Salk.  519.  1  Saund.  285.  (n.  5.) 
1  Stra.  303.  2  Wils.  150.  Bac.  Abr.  Pleas,  &c.  N.  3.  4  East, 
502.  Vid.  ante,  note  to  §  22. 


OF  DEMURRER.  475 

the    pleadings ;    judgment    must,    nevertheless,    be    CHAP. 
given,  upon  the  whole  record,  and   regularly,  against      ix. 
that  party,   in   whose  pleading  the  first  substantial  PART  i, 
fault    has  oecurred(6).     Thus   if    the    declaration  is 
ill,    in    substance — the   plea    in   bar   frivolous — and 
demurrer  joined,  on  the  plea  ;  judgment  must  be   for 
the  defendant.     For  though  the  issue  in  law  is  join- 
ed, immediately  and  in  terms,  on  the  plea  only,  and 
though  that  is  worthless ;  yet  a  bad  plea  is  sufficient 
for  a  bad  declaration. 

^  58.  Upon  the  same  principle,  if  the  declaration 
is  good — the  plea  and  replication  both  ill  in  sub- 
stance— and  demurrer  joined  on  the  replication ; 
judgment  must,  regularly,  be  for  the  plaintiff(c). 
For  the  first  substantial  fault  is  on  the  defendants- 
part ;  and  a  bad  replication  is  sufficient  for  a  bad 
plea. 

^  39.  But  in  the  case  last  supposed,  there  is  one 
exception  to  the  general  rule  :  viz.  when  the  repli- 
cation to  an  insufficient  plea  is  not  only  defective  in 
matter,  but  also  shows  that  the  plaintiff  has  no 
cause  of  action.  In  such  a  case,  judgment,  on  de- 
murrer to  the  replication,  must  be  for  the  defend- 
ant— though  his  plea  is  radically  insufficient(W). 
For.  in  every  such  case,  it  will  necessarily  appear, 
from  the  whole  record,  that  the  plaintiff  is  not  entitled 
to  judgment. 

(b)  lid. 

(c)  lid.     Doug.  94—97. 

(d)  8  Co.  120.  b. 


476 


OF  DEMURRER. 


§  40.  Thus,  when  to  a  general  declaration,  on  a 
penal  bond,  (as  a  bond,  conditioned  for  the  perform- 
ance  of  covenants,  &c.),  the  defendant  pleads  an  in- 
sufficient  bar,  and  the  replication  assigns  as  a  breach, 
what  is  in  law  no  breach  ;  judgment,  on  demurrer 
to  the  replication,  must  be  for  the  defendant  ;  though 
his  plea  is  ill  in  substance(e).  For,  as  in  this,  and 
all  similar  cases,  the  declaration  counts  only  on  the 
penal  part  of  the  bond  ;  the  real  ground  of  the  action 
does  not  appear,  until  a  breach  of  the  condition  is 
assigned  in  the  replication;  which  is,  in  effect,  a 
supplement  to  the  declaration  —  or  a  specification  of 
the  more  general  complaint  presented  in  it.  In 
effect,  therefore,  the  first  substantial  fault  in  the 
pleadings  is  on  the  part  of  the  plaintiff:  For  though, 
in  the  order  of  pleading,  the  plea  precedes  the  repli- 
cation ;  yet,  in  the  order  of  title,  the  replication,  in 
this  class  of  cases,  precedes  the  plea. 


judgment  §41.  The  judgment,  rendered  upon  a  demurrer, 
regularly  follows  the  nature  of  the  pleading  demurred 
to.  Thus,  as  we  have  before  seen,  the  judgment  on 
demurrer  to  a  plea  in  abatement,  if  for  the  defendant, 
is  that  the  writ  be  quashed  —  and  if  for  the  plaintiff, 
that  the  defendant  answer  over  (ch.  5,  §§  158.  159). 
And  thus  the  form  of  the  judgment  corresponds  to 
that  of  the  prayer  of  judgment  in  the  demurrer. 

§  42.     In  like  manner,  when  a  demurrer  is  joined 
on  any  of  the  pleadings  in  chief-  —  as  on  the  declara- 

(e)  Cro.  Jac.  133.  220.  221.  3  Co.  52.  8  Ib.  120.  b.  2  Bulstr. 
94.     Palm.  287.     1  Brownl.  105.     Yelv.  152.  2  Ld.  Ray.  1080. 


OF  DEMURRER.  477 

tion,  plea  in  bar,  or  other  pleading,  which  goes   to    CHAP* 
the  action,  the  judgment   is  final — i.   e.   if  for  the       ix. 
plaintiff,  it  is,  quod  recuperet;  if  for  the  defendant,  it  PART  i. 

is,  quod  eat  sine  die(f)  :    So  that,  on  demurrer  to 

any  of  the  pleadings,  which  go  to  the  action,  the  judg- 
ment, for  either  party,  is  the  same  as  it  would  have 
been^  on  an  issue  in  fact,  joined  upon  the  same 
pleading,  and  found  in  favor  of  the  same  party.  If 
the  defendant  demurs  to  the  declaration,  but  con- 
cludes in  abatement,  (as  by  praying  judgment,  that 
the  writ  be  quashed} ;  the  plaintiff  may  join  in  the 
demurrer,  as  in  bar,  by  praying  judgment,  that  his 
debt,  or  damages,  be  adjudged  to  him  ;  and  if  his 
declaration  be  good,  he  shall  have  judgment,  quod 
recuperet.  For  by  the  demurrer,  the  declaration  is 
confessed(g) ;  and  the  defendant's  having  prayed 
judgment,  as  in  abatement,  cannot  alter  or  impair  the 
effect  of  that  confession. 

^  43.    A  judgment,   rendered  upon  demurrer,  is  conclusive, 
equally  conclusive,  (by  way  of  estoppel),  of  the  facts,  estoppel.0 
confessed  by  the  demurrer,  as  a  verdict,  rinding  the 
same  facts,   would   have  been(A)  :     Since  they  are 
established,  as  well  in  the   former  case,  as  in  the 
latter,  by  matter  of  record.     And  facts,  thus  estab- 
lished, can  never  afterwards  be  contested,  between 
the  same  parties,  or  those  in  privity  with  them. 

(/)  Bac.  Abr.  Pleas,  Sac.  N.  4.   10  Co.  58. 

(g)  3  Lev.  223.     Com.  Dig.  Pleader,  Q.  3.      Lawes'  PI.  172. 

(h)  6  Co.  7.  Cro.  Eliz.  668.  2  Black.  R.  827.  Peake  Ev. 
36.  (2d  ed.)  1  Mod.  207.  Bac.  Abr.  Pleas,  &c.  I.  13.  1 
Freem.  198-9. 

61 


OF  DEMURRER. 

CHAP.        §  44.  If  therefore,  on  demurrer  to  the  declaration, 
ix.      to  the  plea  in  bar,  or  to  other  pleading  in  chief,  judg- 
PART  i.    ment  is  rendered  for  the  defendant ;  the  plaintiff  can 
never  afterwards  maintain,  against  the  same  defend- 
ant or  his  privies,  any  similar  or  concurrent  action, 
for  the  same  cause  ;  i.  e.  upon  the  same  grounds,  as 
were  disclosed  in  the  first  declaration(i).     For  the 
judgment,    upon    such  a  demurrer,    determines   the 
merits  of  the  cause  ;  and  a  final  judgment,  deciding 
the  right  in  controversy,  must  put  an  end  to  the  dis- 
pute— or  litigation  would  be  endless. 

§  45.  But  if  the  plaintiff,  on  demurrer,  fails  in  his 
first  action,  from  the  omission  of  an  essential  allega- 
tion in  his  declaration,  which  allegation  is  supplied 
in  the  second  ;  the  judgment  in  the  first  is  no  bar  to 
the  second  ;  although  both  actions  were  brought  to 
enforce  the  same  right(A;).  For  in  this  case,  the 
merits  of  the  cause,  as  disclosed  in  the  second  decla- 
ration, were  not  decided  in  the  first. 

§  46.  Upon  the  same  principle,  if  the  declaration 
is  adjudged  ill,  on  demurrer,  because  the  action  is 
misconceived,  (as  if  debt  or  assumpsit  is  brought, 
where  account  is  the  only  remedy  ;  or  if  trespass  is 
brought,  where  the  only  proper  action  is  trover, 
or  detinue)  ;  the  judgment  is  no  bar  to  a  proper 
action,  afterwards  brought  for  the  same  cause(/). 

(0  lid. 

(fc)   1-  Mod.  207.   1  Chitt.Pl.  195.   Bac.  Abr.  Pleas,  &c.  I.  13. 

(I)  Cro.  Eliz.  668.  2  Vent.  169.  170.  T.  Ray.  472.  Polexf. 
634.  2  Brownl.  83.  2  Black.  Rep.  779.  827.  831.  Cro.  Car. 
35.  1  Chitt.  PI.  195. 


OF  DEMURRER  TO  EVIDENCE.  479 

For  in  this  case,  as  in  the  last,  the  merits  of  the    CHAP. 
cause  could  not  be  determined  in  the  first  action.  ix. 

PART  II. 


PART  II. — Of  Demurrer  to  Evidence. 

§  47.  In  some  cases,  when  the  pleadings  termi- 
nate in  an  issue  in/act,  joined  to  the  jury,  the  party 
(whether  plaintiff  or  defendant),  who  takes  the  ne- 
gative side  of  the  issue,  may  withdraw  the  exami- 
nation of  the  cause  from  the  jury,  to  the  court,  by 
demurring  to,  (or  upon),  the  evidence,  exhibited  by 
the  adverse  party,  in  support  of  the  affirmative  of 
the  issue(m).  By  this  proceeding,  the  issue  in/act^ 
closed  to  the  jury,  is  exchanged  for  an  issue  in  law  ; 
and  on  the  determination  of  this  latter  issue,  either 
way,  judgment  follows,  as  it  would  have  done,  on  a 
verdict  found  for  the  same  party,  on  the  issue  in 
fact. 

^  48.  A  demurrer  of  this  kind,  though  called  a 
demurrer  to  evidence,  is  essentially,  as  will  appear  in 
the  sequel,  a  demurrer  to  the  facts  shown  in  evidence  ; 
and  in  this  respect,  it  differs  from  the  demurrer, 
already  treated  of,  which  is  taken  to  the  facts  shown 
in  the  pleadings. 

§  49.  The  object  of  a  demurrer  to  evidence  is, 
to  bring  in  question,  on  the  record,  the  relevancy  of 

(m)  Co.  Litt.  72.  5  Co.  104.  a.  Cro.  Eliz.  762.  Aleyn,  18. 
T.  Ray.  404.  Bac.  Abr.  Pleas,  &c.  N.  7.  Bull.  N.  P.  313. 
Reg.  PI.  129. 


480 


OF  DEMURRER  TO  EVJDEM/E. 


CHAP,    tno  evidence  on  one  side,  to  the  whole  issue  ;  and  to 

ix.       make  the  question  of  its  relevancy  the  sole   point,  on 

PART  ii.  which   the  issue  in  fact  is  to  be  determined.     For 

upon  this  demurrer,  the  issue  in  fact  is  determined, 

by  the  determination  of  the  issue  in  law:  So  that  a 

decision  on  the  demurrer,  in  favor  of  either  party,  is, 

in  effect,  a  finding  of  the  issue  in  fact  in  favor  of  the 

same  party. 


The   rele 
vancy   of 


law  ;  it.s 
credibility, 
of  fact. 


^  50.  It  must  here  be  premised,  that  the  relevancy 
evidence  is  of  evidence  to  any  given  issue  (i.  e.  its  condiiciveness 

matter   of  J    o  V 

or  tendency  to  prove  or  disprove  the  issue),  is  matter 
of  law,  to  be  determined  by  the  court :  But  its  rele- 
vancy being  established — its  weight,  or  the  question 
how  far  it  conduces  to  prove  the  issue,  or  fact  in  dis- 
pute, is  matter  of  fact,  to  be  determined  by  the 
jury(n)  :  In  other  words — whether  that,  w  hich  is 
offered  as  evidence  to  any  given  point,  is  evidence  to 
the  point,  is  a  question  of  law ;  whether,  being 
evidence,  it  is,  or  is  not,  sufficient  to  prove  the  point, 
is  a  question  of  fact. 

^  51.  Evidence  is  always  relevant  to  any  issue, 
which  it  cpnduces,  in  any  degree,  to  prove.  And  as 
its  relevancy  is  the  only  point,  of  which  the  court  can 
judge,  on  the  demurrer;  it  follows,  that  it  can  never 
be  safe  for  a  party  to  demur  to  evidence,  which  is 
clearly  relevant  to  the  whole  issue(o),  i.  e.  which 
clearly  conduces,  in  any  degree,  to  prove  the  whole 
affirmative  side  of  the  issue.  But  where  the  whole 


(n)   Doug.  375.  2  H.  Black.  205." 
(o)  2  H.  Black.  205. 


OF  DEMURRER  TO  EVIDENCE.  481 

evidence,  exhibited  in  support  of  the  affirmative   of    CHAP. 
the  issue,  is  relevant  to  a  part  only  of  the  issue,  it       ix. 
may  be  safely  demurred  to  ;  because,  in  such  a  case,  PARTII. 
the  evidence  could  not  warrant  a  finding  of  the  issue 
by  the  jury,   in  favor  of  the   party   exhibiting   the 
evidence. 

^  52.    As  the  question,  raised  by  this  demurrer,  The  demur- 
is,  whether  the  evidence  demurred  to  is  sufficient  in  to  the  whole 
law  to  maintain  the  affirmative  of  the  issue  mfact;  it  the  adverse 
is  manifest,  that  the  demurrer  should  be  taken  to  the  P 
whole  evidence,  exhibited  by  the  adverse  party  Q?)  : 
Since   the  whole  of  it   may  be  sufficient  to   main- 
tain the   issue,  when  a  part  of  it  would  not  be  so. 
And  as  that  party  would  have  had  the  benefit  of  all 
the  evidence,  exhibited  on  his  part,  before  the  jury, 
from  whom   the   issue  is  withdrawn  by  the   demur- 
rer ;    he    is   clearly  entitled   to  the   opinion  of  the 
court,  upon  the  relevancy  of  the  whole  of  it,  on    the 
demurrer.     Jf  therefore  any  particular  part  of  the 
evidence,  offered  in  support  of  the  issue,  is  object- 
ed to,  as  irrelevant,  but  admitted   by  the  judge  ;  the 
party  objecting  cannot  demur  to  that  part  alone(q)  ; 
but  should  file  his  bill  of  exceptions,  or  move  for  a 
new  trial. 

§  53.  It  appears  manifest,  from  the  nature  and 
office  of  a  demrurer  of  this  kind,  that  it  can  be 
taken  only  to  the  evidence  of  that  party,  who  takes 
the  burden  of  proof,  on  the  issue  ;  and  this  is,  regu- 

(/»)   1  Salk.  284.     Bull.  N,  P.  314. 
(9)   lid. 


482  OF  DEMURRER  TO  EVIDENCE. 

CHAP.    larty>  the  party  who  takes  the  affirmative  of  the  issue. 

ix.       For  it  is  not  incumbent  on  the  other  party  to  prove 

PART  ii.  his  side  of  the  question  ;  since,  as  a  general  rule,  the 

finding  must,  of  course,  be  in  his  favor,  unless  the 

affirmative  is  proved  against  him. 

§  54.  A  demurrer  to  evidence,  when  accepted 
by  the  adverse  party,  or  allowed  by  the  court,  puts 
an  end  to  the  trial  of  the  question  of  fact,  by  the 
jury ;  and  refers  to  the  court  the  application  of  the 
law  to  the  facts  shown  in  evidence.  The  demur- 
rer, therefore,  when  properly  tendered,  admits  the 
facts  thus  shown  ;  but  denies  their  sufficiency,  in 
law,  to  maintain  the  issue  in  favor  of  the  adverse 
party(r). 

§  55.  In  the  nature  of  the  thing,  therefore,  the 
fact,  or  facts,  which  the  evidence  exhibited  affirms, 
must  be  ascertained,  before  the  question  of  law,  in- 
tended to  be  raised  by  the  demurrer,  can  arise(s). 
For,  confessing  simply  the  existence  of  the  evidence 
offered,  is  not  confessing  the  fact,  intended  to  be 
proved  by  it ;  nor  is  a  confession  of  the  truth  of  the 
evidence,  in  all  cases,  and  necessarily,  a  confession 
of  the  fact  intended  to  be  proved  by  it. 

§  56.  And  from  this  last  consideration  arises  the 
necessity  of  requiring  the  party,  demurring  to  evi- 
dence, to  make,  upon  the  record,  certain  admissions, 

(r)  Co.  Litt.  72.  4  Co.  104.  a.  Bac.  Abr.  Pleas,  &c.  N.  7. 
2  H.  Black.  205-6. 

(s)  2  H.  Black.  205-6. 


OF  DEMURRER  TO  EVIDENCE. 

which  will  be  hereafter  stated  and  explained,  and    CHAP. 
without  which  the  opposite  party  cannot  be  required      ix. 
to  join  in  demurrer;  nor,  if  he  does  join,  can  the  PARTII. 
court  pronounce  any  judgment  upon  it. 

^  57.  Doubts,  which  no  longer  exist,  were  for- 
merly entertained,  as  to  the  kind  of  evidence,  which 
might  properly  be  demurred  to ;  but  it  is  now  well 
settled,  that  evidence  of  any  kind,  written  or  parol, 
direct  or  circumstantial,  is  a  subject  of  demurrer : 
'Though  the  manner  of  framing  the  demurrer,  and 
of  making  the  necessary  admissions  upon  the  record, 
is  regulated  by  the  nature  of  the  evidence  demur- 
red to(t). 

^  58.  When  all  the  evidence,  exhibited  in  sup- 
port of  the  affirmative  of  the  issue,  is  written,  (as 
where,  on  the  general  issue,  the  plaintiff  exhibits  a 
bond,  as  evidence  of  the  debt  for  which  he  sues,  or 
a  deed  of  conveyance,  or  record,  as  evidence  of  his 
title  to  land  demanded),  all  the  authorities,  ancient 
and  modern,  agree  that  the  defendant  may  demur  to 
the  evidence(w)  :  There  being,  in  such  a  case,  no 
danger  of  a  variance,  in  the  statement  of  it.  But 
how  far  unwritten  evidence  is  liable  to  be  demurred 
to,  is  a  point  not  fully  settled,  in  the  older  books(V). 

(/)   2  II.  Black.  206-9. 

(u)  5  Co.  104.  a.  Cro.  Eliz.  752.  Cora.  Dig.  Pleader,  Q. 
10.  Co.  Litt.  72.  a.  3  Black.  Com.  372.  Bac.  Abr.  Pleas,  &c. 
N.  7.  Bull.  N.  P.  313. 

(v)  Co.  Litt.  72.  a.  5  Co.  104.  a.  1-Lev.  87.  2  H.  Black. 
206.  Bac.  Abr.  Pleas,  &c.  N.  7. 


484  OF  DEMURRER  TO  EVIDENCE. 

CHAP.        §  59.     According  to  an  opinion,  formerly  held  by 

ix.       some,  a  party,  exhibiting  parol  evidence  in  support 

PART  ii.  of  an  issue,  is  never  bound  to  join  in  a  demurrer  to 

it ;  because  it  is  uncertain(iv) — that  is,  because  no 

tenor  can  be  predicated  of  it ;  and  therefore,  there 

is  danger  of  a  variance,  in  stating  it  upon  the  record. 

what  ad-         $$  60.     But   there    seems,   now,   to   be  no  doubt 

missions  the  •  ....  f 

party,  de-     that  evidence  of  any  kind,  exhibited  in  support  of 

murnng,  m  •  . 

must  make,   an   issue,   may  be   demurred    to,   under  the  restnc- 

011  the  re-  •> ^  _  *  /•/•!!• 

™rd-  tions,  or  conditions,  prescribed   in   the  five  following 

rules  :  So  that  if  these  conditions  are  complied  with, 
by  the  party  demurring ;  the  opposite  party  must 
join  in  the  demurrer,  or  wave  the  evidence. 

^61.  1.  Though  all  the  evidence,  exhibited  in 
support  of  the  issue,  rests  in  parol ;  yet,  if  both  par- 
ties voluntarily  join  in  a  demurrer  to  it,  and  if  it  is 
properly  framed,  and  the  necessary  admissions,  here- 
after to  be  stated,  are  entered  upon  the  record  ;  the 
court  must  give  judgment  upon  it(V). 

^  62.  2.  When  in  support  of  the  issue,  a  party 
exhibits  evidence,  written  or  parol,  for  the  purpose 
of  proving  any  definite  fact,  the  opposite  party  may, 
by  expressly  admitting  the  fact  itself,  upon  the 
record,  demur,  and  oblige  the  party,  exhibiting  the 
evidence,  to  join  in  the  demurrer,  or  to  wave  the 

(to)  Cro.  Eliz.  752.     Com.  Dig.  Pleader,  Q.  10.     Bac.  Abr. 

Pleas,  &c.  N.  7. 

(*}  Cro.  Eliz.  752.     2  H.  Black.  206.     Bac.  Abr.  Pleas,  &c. 

N.  7. 


OF  DEMURRER  TO  EVIDENCE.  435 

evidence  (y).     For   the  fact  being  thus    admitted  ;    CHAP. 
the   question  of    law  is  distinctly  presented   to  the      ix. 
court,  upon   the    face   of  the  record.      Thus  if,  in  PART  n. 

trover  against  a  bailee,  or  finder  of  goods,  the  only 

evidence  exhibited,  of  a  conversion,  is  such  as  goes 
to  prove  mere  negligence,  on  the  part  of  the  defend- 
ant, in  keeping  the  goods ;  the  defendant,  by  ad- 
mitting, upon  the  record,  the  fact  of  negligence  in 
the  keeping,  may  demur,  and  oblige  the  plaintiff  to 
join,  or  wave  the  evidence.  And  the  defendant,  in 
this  case,  would  be  entirely  safe  in  making  this 
confession ;  because  mere  negligence  never  consti- 
tutes a  conversion,  in  trover. 

§  63.  3.  When  petrol  evidence,  exhibited  in  sup- 
port of  the  issue,  is  certain  and  direct,  the  adverse 
party,  by  entering  the  evidence  upon  the  record, 
together  with  an  admission  that  it  is  true,  may  de- 
mur to  it,  and  oblige  the  party  exhibiting  it,  to  join 
in  the  demurrer,  or  wave  the  evidence(z).  For  in 
this  case,  an  admission  of  the  truth  of  the  evidence, 
(which  by  the  supposition  is  certain,  and  direct),  is 
an  admission  of  the  fact  affirmed  by  it. (3). 

(j/)   Sty.  22.  34.     Aleyn,  18.     2  H.  Black.  207-8. 

(z)  Aleyn,  18.  2  H.  Black.  207-8.  Corn.  Dig.  Pleader,  Q. 
10.  5  Co.  104.  a.  Co.  Litt.  72.  a.  Bac.  Abr.  Pleas,  &c.  N.  7. 
Bull.  N.  P.  313. 

(3)  To  understand  this,  and  the  two  following  rules,  in  the 
text,  it  is  necessary  to  distinguish  correctly  between  the  several 
kinds  or  qualities  of  evidence,  of  which  they  are  predicated.  As 
I  understand  these  distinctions,  evidence  is  '  CERTAIN',  and  '  m- 

62 


486  OF  DEMURRER  TO  EVIDENCE. 

CHAP.  §  64.  4.  If  the  evidence  exhibited  is  «  LOOSE 
ix.  AND  INDETERMINATE';  the  adverse  party  cannot 
PART  ii.  demur  to  it,  without  stating  it  upon  the  record,  as 
certain  and  determinate,  and  admitting  it,  in  that 
form,  to  be  true(a).  Thus,  if  a  witness  testifies,  in 
support  of  the  issue,  that  a  fact  is  thus,  according 
to  his  present  impression  recollection  or  belief;  the 
adverse  party,  to  entitle  himself  to  demur  to  it,  must 
state  the  evidence  upon  the  record,  as  '  certain',  i.  e. 
as  affirming  absolutely,  that  the  fact  is  thus,  and 
must  admit  the  evidence,  as  thus  stated,  to  be  true. 
For  in  this  case,  confessing  the  testimony,  in  the 
ivords  of  the  witness,  to  be  true,  would  not  amount 
to  a  confession  of  the  fact  testified  about  ;  but 
merely  to  an  admission  of  the  witness's  belief  of  the 
fact :  An  admission,  which,  if  allowed  as  sufficient, 

(a)   2   H.   Black.  207.  208.    Aleyn,  18.    Bac.  Abr.  Pleas,  &c. 
N.  7.     Bull.  N.  P.  313. 

RECT',  within  the  meaning  of  the  rule,  when  it  explicitly,  absolute- 
ly, and  without  qualification,  affirms  the  particular  fact,  intended 
to  be  proved  by  it :  As,  when  a  witness  positively  asserts  a  fact  to 
be  thus,  or  thus,  without  reservation.  According  to  this  explana- 
tion, evidence,  which  the  rule  terms  '  certain',  is  contradistinguish- 
ed from  such,  as  is  called,  '  loose  and  indeterminate'' ;  by  which 
appears  to  be  meant  evidence,  affirming  a  fact,  doubtfully,  or  with 
some  reservation  :  As  when  a  witness  declares  a  fact  to  be  thus, 
or  thus,  '  according  to  his  best  recollection,  or  belief.1 — '  CIR- 
CUMSTANTIAL' evidence  is  that,  which,  by  affirming  some  colla- 
teral mailer  of  fact,  conduces  thereby  to  prove  another  (the  princi- 
pal) fact,  consequentially,  as  an  inference,  or  conclusion  from  the 
former.  And  in  this  sense  '  circumstantial'  is  distinguished  from 
'  direct',  evidence  ;  which  is  such,  as  in  express  and  direct  terms 
affirms  the  principal  fact,  or  matter  immediately  in  issue. 


OF  •DEMURRER  TO  EVIDENCE.  487 

would  refer  the  weight  of  the  testimony  to  the  court.    CHAP. 
And  as   the  jury,  from  whom   the  demurrer  with-       ix. 
draws  the  trial,  might,  from     the  testimony    above  PART  n. 
supposed,   have  found  the  fact  testified  about ;  the 
party  exhibiting   the  testimony,  is  entitled   to   the 
full  effect  of  such  a  finding.     It  follows,  therefore, 
that  unless  the  party,  demurring  to  such  evidence, 
makes  the  admission,  required  by  this  rule,  the  oppo- 
site party  is  not  bound  to  join  in  the  demurrer. 

^  65.  5.  When  the  evidence,  to  which  a  demur- 
rer is  offered,  is  '  CIRCUMSTANTIAL',  the  party  de- 
murring must  distinctly  admit,  upon  the  record, 
every  fact,  and  every  conclusion,  in  favor  of  the  op- 
posite party,  which  the  evidence  conduces  to  prove 
— in  other  words,  every  fact,  which  the  jury  might 
have  inferred  from  it,  in  his  favor(6)  :  Otherwise, 
he  is  not  bound  to  join  in  the  demurrer ;  because, 
without  such  admission,  the  weight,  as  well  as  the 
relevancy  of  the  evidence,  would  be  referred  to  the 
court.  For  in  this,  as  in  the  former  case,  merely 
confessing  the  evidence  to  be  true,  is  not  a  confes- 
sion of  any  fact,  on  which  the  proper  question  of 
law  can  arise :  Since  the  truth  of  all  circumstantial 
evidence,  however  strong  it  may  be,  is  always  con- 
sistent with  the  possible  non-existence  of  the  fact, 
which  it  conduces  to  prove.  If  however,  the  party 
demurring  makes  the  admission,  required  by  the 
rule  ;  the  other  party  must  join  in  demurrer,  or  ivave 
the  evidence.  But  without  such  admission,  the 
latter  is  not  bound  to  join ;  and  if  he  does,  the 

(6)  Aleyn,  18.     2  II.  Black.  187.  209.     3  Peters,  40. 


OF  DEMURRER  TO  EVIDENCE. 


CHAP,    court  can  pronounce  no  judgment   upon   the  denmr- 
ix.       rer(c). 

PART  II. 

^  66.  This  rule  may  be  illustrated,  by  the  fol- 
lowing case  :  Tn  an  action  by  the  holder,  against 
the  acceptors,  of  a  bill  of  exchange,  payable  to  a 
fictitious  payee,  or  order,  and  which,  after  the  ac- 
ceptance, had  been  indorsed  by  the  drawers,  in  the 
name  of  the  fictitious  payee,  for  valuable  considera- 
tion, to  the  plaintiff  —  the  latter  exhibited  evidence 
.  of  a  long  course  of  dealing,  in  similar  bills,  between 
the  drawers  and  acceptors  —  for  the  purpose  of  rais- 
ing a  presumption,  from  these  circumstantial  facts, 
that  the  defendants,  at  the  time  of  accepting  the 
bill,  KNEW  the  payee  to  be  fictitious  ;  and  of  then 
urging  as  matter  of  law,  that  if  this  presumption 
was  established,  the  defendants  were  bound  by 
their  acceptance.  To  this  evidence  the  defendant 
demurred,  without  admitting,  upon  the  record,  their 
knowledge,  at  the  time  of  accepting  the  bill,  that  the 
payee  was  fictitious  ;  and  the  plaintiff  joined  in  de- 
murrer. But  it  was  resolved,  in  the  House  of  Lords, 
by  the  unanimous  opinion  of  the  Judges,  that,  be- 
cause the  defendant's  knowledge  of  the  payee's  being 
a  fictitious  person,  (which  was  the  great  point  of 
fact  in  issue),  was  not  expressly  admitted,  on  the  re- 
cord ;  the  point  of  law,  intended  to  be  raised  by  the 
demurrer,  could  not  arise  upon  the  record  ;  and  con- 
sequently that  no  judgment  could  be  given  upon 
the  demurrer(cT). 

(c)   Sty.  34.     2  H.  Black.  209. 
(rf)   2  11.  Black.  187  to  209. 


489 

§  67.  Before  this  determination  in  the   House  of    CHAP. 
Lords,  it  had  been  resolved  in  B.  R.(e),  that  on  a       ix. 
demurrer    to  circumstantial    evidence,    '  every  fact,  PART  IT. 
which  the  jury  could  infer'   from  it,  in  favor  of  the 
party  offering  it,  '  was  to  be  considered  as  admitted? 
without  any  express  admission  upon  the  record.     But, 
to  avoid  any  doubt  that  might  arise,  as  to  the  extent 
of  any  such  implied  admission,  the  rule,  as  now  defi- 
nitively settled  by  the  highest  authority,  is,  as  stated 
above,  viz.   that  every  such  fact  must  be  expressly 
admitted,  upon  the  record. 

&  68.     From  the  principles  already  stated,  it  is  If  the  ne- 

1  m     ••*  cessary  ad- 

apparent,  that  if  the  party,  demurring  to  evidence  of  m^s\ons 
any  kind,  does  not  make,  upon  the  record,  the  ad-  m£ide>  no 

.      .  .  judgment 

missions  required  in  the  particular  case,  by  the  pre-  c?n  be 
ceding  rules  ;  and  the  opposite  party  nevertheless 
joins  in  the  demurrer ;  the  court  can  give  no  judg- 
ment on  the  demurrer  ;  but  must  award  a  venire  de 
novo — that  the  issue  in  fact  may  be  referred  to 
another  jury(/). 

^  69.  As  the  only  point  in  issue,  on  a  demurrer 
to  evidence,  is,  whether  the  evidence  is  sufficient,  in 
law,  to  maintain  the  issue  in  fact ;  no  exception  can, 
on  such  a  demurrer,  be  taken  to  any  defect  in  the 
pleadings ;  as  the  demurrer  does  not  extend  to 
themfe). 

(e)   D  nig.  119-134. 

(/)  Bull.   N.   P.  313.     2  H.  Blaek.  209.     Bac.  Abr.   Pleas, 

&c.  N.  7. 

(-•)   Bull.  N.  P.  313.     Doug.  218—223. 


490  OF  DEMURRER  T0  EVIDENCE. 

CHAP.        %  70.  But  after  the   demurrer  is  determined,  ad- 

ix.      vantage  may  be  taken  of  such  defects,  on  motion  in 

PART  ii.  arrest  of  judgment,  as  after  verdict(/t).     The  motion 

" must,  however,  operate,  I  conceive,   not  as  such  a 

motion,  made  after  a  general  verdict :  For  as  the 
issue  has  not  been  found  by  the  jury,  no  fact,  not 
alleged,  and  not  appearing  in  the  evidence,  as  recited 
on  the  record,  can  be  presumed,  in  favor  of  the  party 
prevailing  on  the  demurrer.  The  effect  of  such  a 
motion,  therefore,  after  a  demurrer  to  evidence  de- 
termined, must  be  the  same,  it  would  seem,  as  after 
a  special  verdict ;  (finding  the  facts  demanded  to) ; 
from  which  nothing  can  be  presumed,  and  by  which 
no  defect  in  the  pleadings  'is  aided,  except  such  as 
would  have  been  aided  on  general  demurrer. 

§71.  The  party,  to  whose  evidence  a  demurrer 
is  offered,  may  always  demand  the  judgment  of  the 
court,  whether  he  is  bound  to  join  in  the  demurrer. 
And  if  there  is  no  colorable  cause  of  demurrer,  the 
court  will  not  allow  it — lest  justice  should  be  delay- 
ed, by  frivolous  exceptions(z).  An  offer  to  demur  to 
evidence  is,  therefore,  not  stricti  juris. 

§  72.  The  whole  proceeding,  in  demurring  to 
evidence — as  the  statement  of  the  evidence,  on  the 
record,  and  the  entering  of  the  necessary  admissions, 
required  by  the  foregoing  rules — is  under  the  di- 
rection and  control  of  the  judge,  at  Nisi  Prius,  or 

(M   lid.     11  Wheat.  173. 

(t)   Aleyn,  18.    Sty.  34.    Bull.  N.  P.  313.     2  Rol.  Rep.  119. 
2  II.  Black.  205.  208. 


/ 

(srt 


OF  DEMURRER  TO  EVIDENCE. 


(if  the  trial  be  at  bar),  of  the  court  in  bank  ;  and  if    CHAP. 
no  plausible  cause  of  demurrer  appears  ;  it  is  the       ix. 
duty  of  the  judge,  or  court,  to  disallow  it(&).  PARTII. 

^  73.  On  a  demurrer  to  evidence,  properly  fram- 
ed, and  joinder  in  demurrer,  the  usual  course  is,  im- 
mediately to  discharge  the  jury  of  the  issue  in  fact  ; 
and  if  the  plaintiff  prevails,  on  the  demurrer,  the 
writ  of  inquiry  of  damages  is  executed  afterwards. 
The  jury  may,  however,  before  they  are  thus  dis- 
charged, be  required  to  assess  the  damages  provi- 
sionally^) ;  And  if  the  demurrer  is  determined  in 
the  plaintiff's  favor  ;  he  will  have  judgment  for  the 
damages,  thus  previously  assessed. 

^  74.  If  a  party,  offering  to  demur  to  evidence, 
is  wrongly  overruled  by  the  court  ;  his  remedy  is  by 
a  bill  of  exceptions,  and  a  writ  of  error,  founded  upon 


(k)  2  Rol.  Rep.  119.     2  H.  Black.  208-9. 

(/)  1  Lill.  Ab.  441.  Bull.  N.  P.  314.  Cro.  Car.  143.  1  Ld. 
Ray.  60.  Plowd.  410.  2  H.  Black.  200.  201. 

(m)  9  Co.  13.  b.  Bac.  Abr.  Bill  of  Exceptions.  Ib.  Pleas, 
&c.  N.  7.  Cro.  Car.  342. 


(4)  For  the  form  of  a-demurrer  to  evidence,  see  Bull.  N.  P. 
314.     2  H.  Black.  198—200. 


CHAPTER  X. 


OF    ARREST    OF    JUDGMENT    AND    REPLEADER. 

CHAP.        SECTION  1.     To   arrest  judgment,  is   to   stay  or 
x.       prevent  it.     This  is  done,  on  motion,  entered  upon 
the  record(«). 

§  2.  This  proceeding  most  usually  takes  place, 
after  an  issue  in  fact  tried,  and  verdict  found  ;  but 
the  motion  may  also  be  made,  after  a  default,  or 
after  a  demurrer  to  evidence  determined(6). 

§  3.  The  principle  of  this  proceeding  is,  that  as 
the  judgment  of  the  court,  which  is  a  conclusion  of 
law  from  the  facts  ascertained  upon  the  record,  must 
be  collected  from  the  whole  record  (ch.  9,  ^  36)  ; 
the  party  who  does  not,  upon  the  whole  record,  ap- 
pear entitled  to  judgment,  cannot  have  it — even 
though  a  verdict  has  been  found  or  a  default  suffered, 
or  a  demurrer  to  evidence  determined,  in  his  favor 

(a)  3  Black.  Com.  387.  393.  Ib.  App.  No.  II.  p.  xi.  Bac. 
Abr.  Pleas,  &c.  M. 

(6)  2  Burr.  900.  Doug.  218.  223.  2  Stra.  1271.  9  Pick. 
546.  Ante,  ch.  9,  §  70. 


OF  ARREST  OF  JUDGMENT  AND  REPLEADER. 

For  notwithstanding  such  verdict,   default,  fee.  the    CHAP. 
whole    record    may  disclose  no  right  of  action,  or       x. 
no   legal   defence,    in   his     favor(c).       And     there- 
fore,   if  a   verdict  is   found    for    the   plaintiff,  upon 
a  declaration  radically  defective — or  for  the  defend- 
ant, on  a  plea  in  bar  totally  void  of  substance  ;  judg- 
ment must,  regularly,  in  either  case,  be  arrested. 

~ 


^  4.  The  question,  raised  by  a  motion  in  arrest 
of  judgment,  is  a  question  of  laiv,  arising  from  the 
face  of  the  record  :  Judgments  being  arrested,  only 
for  intrinsic  causes,  i.  e.  such  only  as  are  apparent 
on  the  record(t?). 

§  5.  Anciently,  judgments  were  constantly  ar- 
rested for  defects  or  faults  merely  formal,  in  the 
pleadings,  or  other  parts  of  the  record  ;  but,  by  the 
various  English  statutes  of  amendments  and  jeofails, 
which  extend  from  the  reign  of  Edward  the  Third, 
to  that  of  Annexe),  this  evil  has  been  remedied. 
And  as  the  law  now  is,  judgments  are,  by  these  sta- 
tutes, protected  against  arrest,  for  mere  formal  de- 
fects in  general,  and  also  for  various  others,  which 
have  been  deemed  substantial,  but  which  are  speci- 
fically enumerated  in,  and  expressly  cured  by,  some 
one  or  other  of  tlf»PSWW&  statutes. 


(c)  8  Co.    120.  b.      133.  b.      1    Lutw.   608.     4    Burr.    2146. 
Wightw.  354. 

(d)  3  Black.  Com.  393. 

(e)  Bac.  Abr.  Malemeni,  &c.  B. 

63 


494  DF  ARREST  OF  JUDGMENT  AND  REPLEADER. 

CHAP.        §  6.     As   to  the   specific   defects   and   omissions, 
x.       which  are  cured  by  the  several  statutes,  above  allud- 
— — —  ed  to,  it  is  unnecessary  here  to  enter  into  any  detail : 
As  the  several  enactments,  being  in  their  nature  pos- 
itive, cannot   be   referred    to  any  one    general  and 
uniform  principle,  and  can  be  understood,  only  by  a 
recurrence  to  the  statutes  themselves^/). 

arrestCSoff  §  ?.  But  as  substantial  defects,  in  general,  are 
ift^veri  not  cured  by  any  of  these  enactments ;  it  remains  to 
enquire,  what  defects  and  omissions  are  cured  by 
verdict,  or  otherwise,  without  the  aid  of  any  statute, 
and  upon  common-law  principles.  For,  independent- 
ly of  any  statute-provision,  many  defects  in  plead- 
ing, which  have  been  formerly  deemed  substantial, 
and  which  would  be  otherwise  fatal,  are  aided  by 
verdict:  And  the  principal  object  of  enquiry,  under 
the  head  of  Arrest  of  Judgment,  is,  what  defects  of 
this  sort  are,  and  what  are  not,  cured  by  verdict,  on 
common-law  principles  ? 

^  8.  Formal  defects  and  errors  in  the  record, 
being  now  harmless,  except  on  special  demurrer ;  it 
follows,  that  judgment  can  be  arrested,  for  no  other 
than  substantial  faults ;  and  these  may  exist,  either 
in  the  pleadings,  or,  where  SiiiSrfiliriTas  been  found, 
in  the  verdict(g).  Thus,  if  the  declaration,  on 
which  the  plaintiff  has  obtained  a  verdict,  is  totally 
defective  in  substance,  or  varies  totally  from  the  writ, 
(as,  if  the  one  sounds  in  debt,  and  the  other  in  tort) ; 

(/)    Vid.  Bac.  Abr.  ubi  sup. 

(-     3  Black.  Com.  393.     1  Salk.  365. 


OF  ARREST  OF  JUDGMENT  AND  REPLEADER.  495 

judgment  may  be  arrested  on   the   defendant's  mo-    CHAP. 
tion :     Or    if — the     declaration     being     good — the        x. 
plea  in  bar,  on  which  the  defendant  has  obtained  a 
verdict,  is  radically  defective  ;  judgment  may  be  ar- 
rested, on  the  motion  of  the  plaintiff(h).     In  both 
these  cases,  the  defect,  which  sustains  the  motion, 
is  in  the  pleadings. 

^  9.  And  if  the  pleadings  are  perfect,  but  the  Faults  ia 
jury  find  a  verdict  varying  materially  from  the  issue, 
instead  of  finding  the  matter  in  issue  itself,  either 
way;  judgment  will  be  arrested,  for  the  insufficien- 
cy of  the  verdict(i)  :  Because  the  court  cannot  learn 
from  it,  for  which  party  judgment  ought  to  be  given, 

^10.  In  regard  to  the  arresting  of  judgment, 
after  verdict,  it  is  a  universal  rule,  that  any  defect  in 
the  record,  which  would  render  a  judgment,  in  pur- 
suance of  the  verdict,  erroneous,  is  a  sufficient  ground 
for  arresting  the  judgment (&).  For  no  court  should 
do  so  nugatory  an  act,  as  to  render  a  judgment, 
which,  when  rendered,  must  be  erroneous, 

In  pursuing  this  subject,  it  will  be  proper  to  treat 
of  arrest  of  judgment, 

I.  For  defects  in  the  pleadings ;  and 
II.  For  defects  in  the  verdict.  . 


(h)  3  Black.  Com.  395.     Cro.  Eliz.  778.     2  Vent.  196. 

(i)  3  Black.  Com.  393. 

(&)   1  Salk.  77.     2  Roll.  Ab.  716.     Com.  Dig.  Pleader,  S.  47. 


496  OF  ARREST  OF  JUDGMENT  AND  REPLEADER. 

CHAP.        §11.     I.  Under  the  first  of  these  heads,  it  is  an 
x.       invariable    rule,  that    no   defect    in    the    pleadings, 

which  would  not   have  been  fatal  to  them,  on  gene- 

in°the  ral  demurrer,  can  ever  be  a  sufficient  cause  for  ar- 
resting judgment(T).  The  principle  of  this  rule  is 
apparent,  from  the  consideration,  that  all  merely 
formal  defects  in  pleading  are  aided,  except  on  spe- 
cial demurrer,  assigning  them  for  cause  ;  and  conse- 
quently, that  all  defects,  on  either  side,  which  would 
not  have  been  fatal  on  general  demurrer,  are  cured 
by  the  adverse  party's  pleading  to  issue,  or  by  a 
default — in  other  words,  by  his  omitting  to  demur 
specially. 

f  §12.  It  is,  however,  by  no  means  universally 
true,  £  converse,  that  every  defect  in  the  pleadings, 
which  would  have  been  fatal  on  general  demurrer, 
is  a  sufficient  ground  for  arresting  judgment,  after  a 
general  verdict(m)(l).  For  if  the  pleading  of  the 
party,  for  whom  such  a  verdict  has  been  found,  is 
faulty,  in  omitting  -some  particular  fact  or  circum- 
stance, without  which  he  ought  not  to  have  judg- 
ment, but  which  is,  nevertheless,  implied  in,  or  inferri- 
ble from,  the  finding  of  those  facts,  which  are  ex- 

(l)  3  Black.  Com,  394.     Carth.  389. 
(w)   lid.     Doug.  683. 

(1)  By  a  general  verdict  is  meant  a  verdict,  found  in  the  terms 
of  the  issue.  A  special  verdict  is  one  not  following  the  terms  of 
the  issue,  but  finding  certain  special  facts,  and  referring  it  to  the 
court,  as  a  question  of  law,  whether  those  facts  maintain  the  issue 
— a  question,  bearing  a  strong  analogy  to  that  which  is  raised  by 
a  demurrer  to  evidence,  (ante,  ch.  9,  §  52 .) 


OF  ARREST  OF  JUDGMENT  AND  REPLEADER.  497 

pressly  alleged  and   found ;  the  pleading  is   aided, .  CHAP. 
(because  the  omission  is  supplied),  by  the  verdict :  j     x. 

In  other  words,  the  court,  in  such  a  case,  must  prc-  

sume    that    the    fact    or  circumstance  omitted    was  1      / 
proved  to  the  jury (n). 

^13.  The  criterion,  by  which  to  distinguish  be^ 
tween  such  defects  in  a  declaration,  as  are,  and 
such  as  are  not,  cured  by  a  general  verdict  for  the 
plaintiff,  is  laid  down  by  Lord  Mansfield,  in  the  case 
of  Rushton  v.  Aspinall,  to  the  following  effect : 
Where  the  statement  of  the  plaintiff's  cause  of  ac-* 
tion,  and  that  only,  is  defective  or  inaccurate,  the 
defect  is  cured  by  a  general  verdict  in  his  favor ; 
because — '  to  entitle  him  to  recover,  all  circumstan- 
ces necessary,  in  form  or  substance,  to  complete  the 
title  so  imperfectly  stated,  must  be  proved  at  the 
trial' ;  and  it  is,  therefore,  '  a  fair  presumption,  that 
they  were  proved'.  But  where  no  cause  of  action  is 
stated,  the  omission  is  not  cured  by  verdict.  For, 
as  no  right  of  recovery  was  necessary  to  be  proved, 
or  could  have  been  legally  proved,  under  such  a 
declaration ;  there  can  be  no  ground  for  presuming 
that  it  was  proved,  at  the  trial  (0).  The  same 
criterion  extends,  mutatis  mutandis,  to  defects  in 

(n)  lid.  Cro.  Jac.  44.  1  Saund.  228.  a.  (n.  1.)  T.  Ray. 
487.  Carth.  304.  1  Salk.  365.  Forrest's  Rep.  54. 

Co)  Doug.  683.  See  Plowd.  202.  1  Saund.  228.  c.  (n.  1.) 
3  Black.  Com.  395.  1  Salk.  365.  Bac.  Abr.  Verdict,  X.  Hob. 
56.  c.  (n.  4.)  Williams1  ed.  Carth.  130.  1  Lev.  308.  Cro. 
Car.  497.  1  Mod.  292.  Com.  R.  116.  3  Wils.  274.  4  T. 
R.  472.  7Ib.  523.  2  Burr.  1159.  2  Mass.  R.  522. 


OF  ARREST  OF  JUDGMENT  AND  REPLEADER. 

CHAP,    the  defendant's  plea,  or  in   any  other  part   of  thq 
x.       pleadings. 


14.  The  ground  or  principle,  on  which  any 
fact,  not  alleged,  is  to  be  presumed,  in  support  of  a 
general  verdict,  is,  that  as  the  verdict  must  be  con- 
sidered as  true  ,  and  as  founded  on  legal  evidence  ex- 
hibited at  the  trial  ;  the  Court,  (which  can  judge 
only  from  the  record),  must  presume  in  support  of 
it,  that  any  and  every  fact,  (not  alleged),  the  proof 
of  which  ivas  necessary  to  justify  the  jury  in  finding 
as  they  have  done,  was  proved  to  them,  on  the  trial  : 
In  other  words,  the  court  must,  in  support  of  such 
a  verdict,  presume  every  thing  to  have  been  proved, 
without  proof  of  which,  the  jury  could  not  have  truly 
found  from  the  evidence,  as  they  have  found(jt?). 
And  thus  the  verdict,  by  legal  and  necessary  intend- 
ment,  SUPPLIES  facts,  omitted  in  the  pleadings. 
This  explanation  of  the  principle,  on  which  omis- 
sions in  the  pleadings  are  aided  by  verdict,  will  be 
found  to  coincide,  in  its  result,  with  the  statement, 
given  in  the  twelfth  section,  of  what  is  to  be  pre- 
sumed in  support  of  a  general  verdict.  But  as  this 
principle,  though  simple  and  rational  in  itself,  has 
often  presented  nice  and  difficult  questions,  in  its 
application  to  particular  cases  ;  a  somewhat  detailed 
illustration  of  it  may  be  useful  : 

(p)  lid.  1  Vent.  109.  1  Saund.  228.  (n.  1.)  2  Ib.  171. 
c.  T.  Ray.  487.  1  T.  R.  145.  545.  7  Ib.  518.  Bull.  N.  P. 
320.321.  1  Salk.  130.  Cowp,.  827. 


OF  ARREST  OF  JUDGMENT  AND  REPLEADER.  499 

§  15.  If,  in  an  action  of  trespass,  the  declaration    CHAP. 
omits  to  lay  the  trespass  on  any  particular  day  (an       x. 

omission,  which  by  the  common  law,  is  a  good  cause  

of  general  demurrer),  but  the  defendant  pleads  to 
issue,  and  a  general  verdict  is  found  against  him  ; 
the  declaration  is  cured  by  the  verdict(^).  For,  as 
the  court  must  presume  that  the  trespass  was  duly 
proved  to  the  jury  ;  it  must  also  follow,  as  a  neces- 
sary presumption,  that  the  wrong  was  proved  to 
have  been  done  on  some  particular  day,  and  that  be- 
fore the  commencement  of  the  suit :  Because  proof 
of  a  trespass,  subsequent  to  the  issuing  of  the  writ, 
would  have  been  legally  inadmissible.  And  thus,  all 
that  was  necessary  to  be  supplied  in  the  declaration, 
viz.  some  particular  time,  when  the  trespass  was 
committed — is,  by  legal  intendment,  supplied  by 
the  verdict. 

^16.  Thus  also,  if  in  trover  for  converting,  or 
trespass  for  taking  away,  the  plaintiff's  goods,  the 
declaration  omits  to  allege  their  value ;  but  the  de- 
fendant pleads  to  issue,  and  the  jury  find  a  general 
verdict,  with  damages,  for  the  plaintiff;  the  declara- 
tion, though  it  would  have  been  ill,  at  common  law, 
on  general  demurrer,  is  aided  by  the  verdict(r). 
For  it  must  be  presumed,  from  the  jury's  having  as- 
sessed the  damages,  that  the  value  was  in  proof  be- 
fore them.  And  thus  by  intendment,  as  in  the  last 

. " 

(</)  3  Black.  Com.  394.     Carth.  389.     2  Salk.  662.     5  Mod. 

287.     Bac.  Abr.  Verdict,  X. 

(r)   1   Sid.  39.     Bac.  Abr.    Trespass,  1.2.   (1).     Esp.    Dig. 

407.     4  Burr.  2455.  arg.     Vid.  2  Johns.  R.  421.  note. 


OF  ARREST  OF  JUDGMENT  AND  REPLEADER. 

CHAP,     case,  the  verdict  ascertains  what  the  declaration  had 
x.       omitted. 


§  17.  Upon  the  same  principle,  if  a  party  pleads 
a  grant  of  any  thing,  lying  only  in  grant,  (as  an  in- 
corporeal hereditament),  without  alleging  that  the 
conveyance  was  by  deed,  and  the  opposite  party,  in- 
stead of  demurring,  as  he  might  for  the  omission  of 
that  allegation,  traverses  the  grant,  and  the  jury  find 
it  ;  the  omission  is  aided  by  the  verdict(s).  For  as 
the  court  is  bound  to  presume  a  grant  proved  to  the 
jury;  and  as  nothing,  except  a  deed  would  have  been 
legal  evidence  of  the  grant  ;  it  must  necessarily  be 
presumed  that  a  deed  of  grant  was  proved,  on  the 
trial. 

^18.  If  a  party  pleads  the  grant  of  a  reversion, 
without  alleging  the  'attornment  of  the  tenant—- 
which, by  the  common  law,  was  necessary  to  the 
completion  of  the  grantee's  title  —  and  on  issue 
joined,  the  jury  find  the  grant  ;  the  pleading  is 
cured  —  though  the  omission  would  have  been  fatal, 
by  the  common  law,  on  demurrer.  And  the  result 
is  the  same,  whether  the  finding  is  upon  a  special 
issue,  taken  on  the  grant  alone,  or  upon  the  general 
issue.  As  where  in  debt  for  rent,  by  the  grantee  of 
a  reversion,  the  declaration  alleges  the  grant,  but 
omits  to  state  an  attornment  :  Here,  if  the  defendant 
pleads  nil  debet,  and  the  jury  find  the  issue  for  the 

(*)  Hutt.  54.    10  Mod.  301.    Bac.  Abr.  Verdict,  X.     2  Wils. 
376.     1  Sauntl.  228.  b.  (n.  1.) 


OF  ARREST  OF  JUDGMENT  AND  REPLEADER. 

plaintiff;  the  declaration  is  cured  by  the  verdict(f).    CHAP. 
For,  the   jury  having,  under    the  direction  of   the       x. 
judge,  found  the  grant ;  the  court  must  intend,  that  PARTII. 
it  was  found    upon  evidence  sufficient    to    prove  a 
complete  grant (2). 

§  19.  Again:  If,  in  debt  on  bond,  the  defendant 
pleads  nil  debet,  and  the  plaintiff,  instead  of  demur- 
ring, joins  in  the  issue  tendered  by  the  plea,  and  the 
verdict  is  for  the  defendaut ;  the  plea  is  cured,  and 
the  defendant  entitled  to  judgment(w).  For,  as  the 

(t)  2  Show.  233.   1  Saund.  228.  a.  b.  (n.  1.)   Com.  Dig.  Plead- 
er, C.  87.    T.  Ray.  487.    Bac.  Abr.  Verdict,  X.    Lawes'  PI.  48. 
(u)  2  Wils.  10. 

(2)  An  example,  several  times  given  in  the  books,  of  the  effect 
of  a  verdict,  in  aiding  defective  pleadings,  is  that  of  a  feoffment 
pleaded,  without  an  express  allegation  of  livery  of  seisin ;  in  which 
case,  the  verdict,  it  is  said,  cures  the  defect  in  the  pleading  (1  T. 
R.  145.  4  Ib.  472.  1  Saund.  228  b.  (n.  1.)  But  with  sub- 
mission, this  example  seems  not  to  be  an  instance,  in  which  the 
pleading  is  aided  bij  verdict,  or  in  which  it  requires  any  such  aid. 
For,  according  to  high  and  multiplied  authority,  ancient  and  mod- 
ern, the  allegation  of  a  feoffment,  without  an  averment  of  livery  of 
seisin,  is  good,  both  in  substance  and  form,  on  demurrer  (Co.  Litt. 
303.  b.  Cro.  Jac.  411.  8  Co.  82.  b.  Cro.  Eliz.  401.  Plowd. 
149.  Com.  Dig.  Pleader,  E.  9.  Bac.  Abr.  Pleas,  &c.  I.  7. 
Lawes'  PI.  48).  For  a  feoffment,  ex  vi  termini,  implies  livery  of 
seisin  ;  since  the  act  of  enfeoffing  is  the  delivering  of  seisin.  And 
therefore,  alleging  a  feoffment  is,  in  effect,  alleging  livery  of  seisin 
(see  ch.  3,  §  6):  Whereas,  in  the  above  case  of  the  grant  of  a  re- 
version, the  attornrnent  is  an  act,  distinct  from  that  of  the  grant 
itself,  and  to  be  done  by  a  different  party.  And  as  the  former  act 
is,  therefore,  not  implied  in  the  latter ;  the  allegation  of  the  one  is 
not,  by  any  implication,  an  allegation  of  tho  other  (8  Co.  82.  b.) 

64 


502  OF  ARREST  OF  JUDGMENT  AND  REPLEADER. 

CHAP,     plaintiff  has,  by  joining  issue  on  the  plea,  waved  the 
x.       estoppel,  which,    (if  he   had   demurred),    the   deed 
•  would  have  furnished,  in  his  favor,  and  has  submit- 
ted to  the  jury  the  naked  question  of  the  defend- 
ant's being  indebted,  which  the  verdict  has  negativ- 
ed ;  the  inference  must  be,  that  it  was  disproved  to 
the  jury. 

^  20.  On  the  other  hand,  facts  not  alleged,  and 
which  are  not  implied  in,  or  inferrible  from,  those 
which  are  alleged  and  found,  cannot  be  presumed  to 
have  been  proved  to  the  jury  :  In  other  words,  no 
fact,  not  alleged,  can  be  presumed  in  support  of  a 
verdict,  unless  proof  of  its  existence  must  have  been 
involved  in,  or  is  inferrible  from,  the  proof  of  those 
which  are  alleged,  and  which  the  verdict  has 
found (v)  :  There  being  no  foundation,  furnished  by 
the  record,  for  any  intendment  or  inference,  that 
any  other  fact,  not  averred,  was  proved  at  the  trial. 

^21.  If  then,  the  declaration  is  totally  defective 
in  substance — as  in  the  common  instance  given,  of 
an  action  of  slander  for  calling  the  plaintiff  a  Jew — 
a  verdict  for  the  plaintiff  will  not  entitle  him  to 
judgment(itf).  For  the  words  charged,  being  not 
actionable,  the  finding  of  the  jury  cannot  make  them 
so ;  and  the  defect  in  the  declaration  is  not  in  the 
statement  of  the  cause  of  action  (for  no  manner  of 

(w)  Doug.  683.  3  Black.  Com.  394.  1  Saund.  228.  a.  b.  c.  (n. 
1.)  IT.  R.  145.  3  Burr.  1728.  Cowp.  826.  Bac.  Abr.  Ver- 
dict, X.  17  Johns.  R.  456.  4  Pick.  341.  11  Mass.  R.  308. 

(w)   3  Black.  Com.  394 . 


OF  ARREST  OF  JUDGMENT  AND  REPLEADER. 

stating  the  words  can  make  them  actionable)  ;  but    CHAP. 
in  the  alleged  cause  of  action  itself.     And  nothing  is       x. 
implied  in,  or  inferrible  from,  the  finding,  which  can 
constitute  a  right  of  recovery. 

^  22.  If  the  declaration  omits  to  allege  any  sub- 
stantive fact,  which  is  essential  to  a  right  of  action, 
ana.  which  is  not  implied  in,  or  inferrible  from,  the 
finding  of  those  which  are  alleged  ;  a  verdict  for  the 
plaintiff  does  not  cure  the  defect(x).  Thus  in  as- 
sumpsit,  if  the  declaration  alleges  no  consideration, 
and  the  jury  find  a  verdict  for  the  plaintiff:  judg- 
ment must  be  arrested(//).  For  the  fact,  that  the 
defendant  promised,  furnishes  no  legal  intendment  or 
inference,  that  the  promise  was  founded  upon  any 
consideration. 

^  23.  Thus  also,  in  an  action  by  a  master,  for  a 
battery  committed  upon  his  servant,  if  the  declara- 
tion omits  to  allege  a  loss  of  service,  in  consequence 
of  the  beating ;  a  verdict  for  the  plaintiff  does  not 
cure  the  omission(Y).  For  it  is  very  manifest,  that 
proof  of  the  alleged  battery,  and  of  all  the  other 
facts  usually  alleged  in  such  a  declaration,  does  not 
necessarily  involve  any  proof  of  a  loss  of  service ; 
and  therefore  no  legal  intendment  can  imply  the  lat- 
ter fact,  from  the  finding  of  the  jury. 

(x)  Bac.  Abr.  Verdict,  X.     Com.  Dig.  Pleader,  C.  87. 

(0)  1  Salk.  364.  Com.  Dig.  Pleader,  C.  87.  7  T.  R.  351. 
(n.  1.)  1  Vent.  27. 

(«)  Keilw.  71.  b.  72.  a.  10  Co.  130.  Yelv.  90.  (n.  1.)  6 
Mod.  127.  Bnc.  Abr.  Verdict,  X. 


504  OF  ARREST  OF  JUDGMENT  AND  REPLEADER. 

CHAP.  §  24.  Again  :  If  in  an  action,  for  an  injury  done 
x.  by  the  defendant's  dog,  to  the  person  or  beast  of 
the  plaintiff,  the  declaration  omits  the  scienter  (an 
allegation  of  the  defendant's  previous  knowledge, 
that  his  dog  was  addicted  to  similar  mischief)  ;  a 
verdict  of  '  guilty'  will  not  aid  the  declaration(a). 
For  all  the  material  facts  alleged  in  the  declaration, 
viz.  the  defendant's  ownership  of  the  mischievous 
animal — the  latter's  addictedness  to  similar  mischief 
— and  the  damage  done  to  the  plaintiff — furnish 
no  legal  inference  of  the  defendant's  previous 
science :  Since  proof  of  any,  or  all,  of  the  former 
facts,  does  not  necessarily  involve  any  evidence  of 
the  latter. 

^  25.  So  also,  when  the  right  of  action*  depends 
upon  the  performance  of  a  condition  precedent,  by 
the  plaintiff,  if  the  declaration  omits  to  allege  per- 
formance of  it,  or  what  is  in  law  equivalent  to  per- 
formance ;  the  omission  is  incurable  by  verdict(6). 
For  in  every  case  of  this  kind,  performance  of  the 
condition,  or  what  is  equivalent  to  it,  is  of  the  gist 
of  the  action  ;  and  is,  moreover,  a  distinct,  collateral 
fact,  which  cannot  be  inferred  or  presumed  from  the 
other  facts  necessary  to  be  alleged(3).  Thus,  if 

(a)  2  Salk.  662.  3  Ib.  12.  13.  Bac.  Abr.  Verdict,  X.  1  Ld. 
Ray.  109.  Doug.  683.  Esp.  Dig.  601-2. 

(6)  6  T.  R.  710.  7Ib.  125.  8  Ib.  366.  2  H.  Black.  574.  582.  n 
1  East,  203.  2  Saund.  352.  (n.  3.)  3  Bulstr.  299.  2  Bos.  &  P 
447.  Com.  Dig.  Pleader,  C.  69. 


(3)   It  is  said,   (1  Saund.  228.  b.  n.  1.)   by  Mr.  Serjeant  Wil- 
liams— an  authority,  not   to  be  lightly   questioned — that    '  when 


OF  ARREST  OF  JUDGMENT  AND  REPLEADER.  5Q5 

A.  engages  to  pay  to  B.  a  sum  of  money,  on  a  cer-    CHAP. 
tain  future  day,  on  condition  that  B.   shall,   before        x. 

that  day,  perform  certain  services  for  A.  ;  it  is  clear,  

that  unless  B.  performs  the  services,  within  the 
time  named,  he  can  have  no  right  to  recover  the 
money  ;  and  it  is  equally  clear,  that  the  finding  of 
the  only  other  material  facts  in  the  case,  viz.  the 
making  of  the  promise,  and  the  non-payment  of 
the  money,  neither  raises,  nor  even  conduces  to 
raise,  any  legal  presumption  of  the  performance  of 
the  services. 

§  26.     A  default  cures  no  defect  in  the  declara- 
tion, which  would  not  have  been  aided,  on  a  general 

a  promise  depends  upon  the  performance  of  something,  to  be  first 
done  by  him,  to  whom  the  promise  is  made,  and  in  an  action  on 
such  promise,  the  declaration  does  not  aver  performance  by  the 
plaintiff,  or  that  he  was  ready  to  perform,  and  there  is  a  verdict 
for  the  plaintiff;  such  omission  is  cured  by  the  verdict,  by  the  com- 
mon law,  but  is  a  fatal  objection,  after  a  judgment  by  default.' 
But  with  great  deference,  the  former  of  these  propositions,  although 
apparently  countenanced  by  a  general  remark  of  Lord  Mansjield, 
in  the  case  referred  to  by  the  learned  writer,  (2  Burr.  900),  ap- 
pears inconsistent,  not  only  with  the  whole  current  of  authority  ; 
but  also  with  the  definite  and  well  established  principles,  stated  and 
explained  in  the  text.  Indeed  the  principle  of  the  great  and  stand- 
ard case,  as  it  may  properly  be  called,  of  Rushton  v.  Jispina-ll, 
before  mentioned  (§  13)  seems  to  stand  in  direct  opposition  to  the 
rule  laid  down  by  Mr.  Sergeant  Williams.  In  that  case,  which 
was  an  action  against  the  indorser  of  a  bill  of  exchange,  the  de- 
claration, though  complete  in  other  respects,  alleged  neither  a  de- 
mand on  the  acceptor,  nor  notice  to  the  defendant,  of  the  dishonor 
of  the  bill.  And  after  a  general  verdict  for  the  plaintiff',  judgment 
was  arrested,  by  the  court  of  King's  Bench,  who  held  each  of 


506  OF  ARREST  OF  JUDGMENT  AND  REPLEADER. 

CHAP,    demurrer  (c).     For  no  fact  can  be  presumed  to  have 
x-       been  proved,  when  no  trial  has  been  had,  and  no 
"  proof  exhibited.     And  therefore  a  motion  in  arrest 
of  judgment,  for  the  insufficiency   of  the   declara- 
tion, after  a  default,  operates  precisely  as  a  general 
demurrer  to  the  declaration  would  have  operated. 

^  27.  The  same  principle,  which  renders  radical 
defects,  in  a  declaration,  incurable  by  verdict,  ex- 
tends to  all  stages  of  the  pleadings,  on  either  side. 
And  therefore,  if  the  defendant's  plea  discloses  no 
legal  defence  ;  a  verdict  in  his  favor  will  not  make 
the  plea  good.  And  judgment  may  be  arrested, 
(the  declaration  being  sufficient)  on  the  plaintiff's 
motion  (d). 

For  faults         ^  28.     It  often  happens,  that  when  the  pleadings 

issue.         are   otherwise    perfect,  judgment  is  arrested,  after 

verdict,  for  some  radical  fault  in  the  issue.     In  cases 

of  this  kind,  in  which  the  same  principle  governs, 

(c)  2  Burr.  900.     1  Saund.  228.  a.  b.  c.  (n.  1.)     2  Stra.  1271. 
1  Wils.  171.     10  East,  364. 

(d]  3  Black.  Com.  395. 

the  omissions,  above  mentioned,  fatal.  The  precise  principle  of 
this  determination  was,  that  as  against  the  indorser  of  a  bill,  whose 
liability  is  only  secondary  and  conditional,  such  demand  and  notice 
are  conditions  precedent ;  the  performance  of  which,  or  either  of 
which,  cannot  be  presumed,  from  the  finding  of  the  facts  alleged 
in  the  declaration  ;  because  proof  of  all  the  latter  facts  does  not, 
and  cannot,  involve  proof  of  such  performance.  Vid.  2  New 
Rep.  239.  240. 


OF    ARREST  OF  JUDGMENT  AND  REPLEADER.  5Q7 

as  in  all  the  foregoing  examples,  the  general  rule  is,    CHAP. 
that  if  the  issue  is  immaterial,  so  that  the  court  can-       x. 
not  discover,  from  the  finding  upon  it,  for  which  party 
judgment  ought  to  be  given ;  the  judgment  must  be 
arrested  (e).     Thus,  if  in  an  action  against  husband 
and  wife,  for  a  wrong  committed  by  her  alone,  they 
plead  that  they  are  not  guilty,  and  the  verdict  is  for 
them  ;    the  judgment   must   be  arrested(/).       For 
the   verdict    determines    nothing,    from   which   the 
court  can  discover  how  judgment  ought  to  be  given  ; 

«/         o  o  o 

since  the  matter,  put  in  issue,  is  not  that,  which  the 
declaration  charges  :  The  complaint  being,  not  that 
the  defendants  are  guilty  of  the  wrong ;  but  only 
that  the  wife  is  so  ;  and  the  verdict  does  not  show 
whether  she  is,  or  is  not  guilty,  but  only  that  both 
defendants  are  not  so.  Thus  also,  if  in  assumpsit 
against  an  executor,  on  a  promise,  alleged  to  have 
been  made  by  his  testator,  the  defendant  pleads  that 
he  did  not  promise  ;  a  verdict  in  his  favor,  on  this 
plea,  cannot  avail  him  ;  and  judgment  will  be  arrest- 
ed, (if  the  declaration  be  sufficient)  on  the  plaintiff's 
motion(g). 

^  29.  Whenever,  then,  one  of  the  parties,  pass- 
ing by  ivhat  is  material  in  the  adverse  pleading,  ten- 
ders an  issue  upon  a  point  which  is  not  so,  and  ob- 
tains a  verdict,  the  judgment  must,  regularly,  be  ar- 

(e)  Com.  Dig.  Pleader,  R.  18.  2  Saurid.  319.  a.  b.  (n.  6.)  1 
Ib.  228.  a.  b.  (n.  1.)  1  Lev.  32.  Carth.  371.  Bac.  Abr.  Pleas, 
&c.  M.  6  Mod.  1.  2  Salk.  579.  Ld.  Ray.  707.  922. 

(/)   Cro.  Jac.  5.    Lawes'  PI.  176.    Bac.  Abr.  Pleas,  &c.  M. 

(»•)  3  Black.  Com.  395.  2  Vent.  196. 


508  OF  ARRE6T  OF  JUDGMENT  AND  REPLEADER. 

CHAP.    rested(A).     Thus,  if  the  declaration  and  plea  in  bar 
x.       are  both  good,  and  the  plaintiff  traverses  an  immate- 

rial  part  of  the  plea,  and  obtains  a  verdict ;  judgment 

must,  according   to   the    general   rule,  be   arrested. 
Shenader    ^n^  generally  in  such  cases,  (i.  e.  where  the  only 
awarded.     fauit  js  jn  fjie  issue^  the  court,  on  arresting  the  judg- 
ment, will  award  a  repleader,  in  order  that  a  better 
issue  may  be  framed(«)(4). 

(A)  3  Black.  Com.  395.  1  Saund.  228.  a.  b.  (n.  1.)  2  Ib.  319. 
a.  b.  (n.  6.)  Com.  Dig.  Pleader,  R.  18.  Bac.  Abr.  Pleas,  &c. 
M.  Cro.  Jac.  434.  2  Burr.  944.  1  Ib.  302.  2  Stra.  994. 

(•)   lid. 

(4)  As  the  plea  in  bar,  in  the  case  here  supposed,  is  a  suffi- 
cient answer  to  the  declaration ;  and  as  the  substance  of  the  plea 
stands  confessed,  by  not  being  traversed  ;  the  question  can  hardly 
fail  to  suggest  itself — why  should  not  the  court,  instead  of  award- 
ing a  repleader,  give  judgment  directly  for  the  defendant,  who  ap- 
pears— though  not  from  the  verdict,  yet  from  the  whole  record — en- 
titled to  it,  the  verdict  notwithstanding  1  For  the  verdict  decides 
nothing  against  him ;  and  the  pleadings  show,  confessedly, 
sufficient  matter  in  bar  of  the  action.  And  the  same  question 
must  naturally  present  itself,  whenever  a  repleader  is  awarded, 
after  verdict,  for  the  immateriality  of  the  issue.  The  true  answer 
to  this  inquiry  appears  to  be,  that  the  awarding  of  a  repleader,  in 
such  a  case,  was  originally  rather  an  act  of  indulgence  to  the 
party  who  tendered  an  improper  issue,  than  a  matter  of  strict 
right :  An  indulgence,  grounded  on  the  presumption,  that  the  is- 
sue was  misjoined  through  the  inadvertence  and  oversight  of  the 
pleaders  ;  and  that  a  further  opportunity  to  plead  would  probably 
result  in  a  material  issue,  decisive  of  the  merits  of  the  cause. 
And  this  indulgence  may  have  been  deemed  the  more  reasonable, 
inasmuch  as  the  traverse,  though  faulty,  is  found  to  be  true ;  arid 
also  as  the  party,  to  whom  it  was  tendered,  has,  by  joining  in  it, 
concurred  in  occasioning  a  ttseless  trial,  which  he  might  have  pre- 
vented, by  demurring  to  the  traverse. 


OP  ARREST  OF  JUDGMENT  AND  REPLEADER. 

§  30.     Such   is   the  usual    course,   whenever  the    CHAP. 
verdict  does  not  show  for  whom  judgment  ought  to        x. 
be  rendered  ;  or  in   other  words,  when   the   matter 
of  fact,  found  by  it,  is  immaterial,  or  not  decisive  of 
the  right  in  controversy^)  ;  though  in  some  cases 
of  this  kind,  as  will   hereafter  appear,  a  repleader  is 
refused,  and   final  judgment  rendered,   according  to 
the  legal  merits  of  the  case,  as  they  appear  from  the 
pleadings,  and  without  reference  to  the  verdict* 

§  31.  An  issue,  as  has  been  stated  in  a  former 
chapter,  (ch.  6,  ^  34)  is  sometimes  so  framed,  that 
a  verdict  upon  it,  on  one  side,  is  decisive  of  the 
merits  of  the  cause,  when  a  finding  the  other  way 
would  not  be  so.  In  such  cases,  the  general  rule  of 
the  common  law  is,  that  when  the  finding  is  thus 
decisive  of  the  merits,  it  cures  the  issue  ;  but  that 
when  it  is  not  thus  decisive,  the  judgment  must  be 
arrested,  and  a  repleader  awarded(/).  But,  by  the 
statute  32  H.  8,  c.  30,  such  issues  are  now,  in  gen- 
eral, as  negatives  pregnant,  aided  by  a  verdict  either 
way.  Yet  an  issue,  strictly  immaterial,  (i.  e.  includ- 
ing nothing  material,  so  that  no  verdict  upon  it,  for 
either  party,  can  decide  the  merits  of  the  controver- 
sy), remains  incurable,  as  at  common  lavv(m). 

^  32.     A  repleader,  for  the   immateriality  of  the  Repleader 
issue,  is  never  awarded,  it  seems,  for  that  party  who  fLed/c" 

(fc)  Gilb.  H.  C.  P.  147.     1  Lev.  32.    2  Saund.  319.  a.  (n.  6.) 
(/)   2  Saund.  317.  319.  a.  (n.  6.)     Cro.  Jac.  550.     2  Lev.  11. 
(m)   Garth.   371.     2   Mod.    137.     2   Saund.    319.  a.  (n.   6.) 
Cro.  Jac.  434.  585.     1  Saund.  228.  (n.  1.) 
65 


/uft 


^  ,      /  I, 


OF  ARREST  OF  JUDGMENT  AND  REPLEADER. 

CHAP,  tendered  the  issue(n).  And  therefore,  if  the  verdict 
x.  is  against  him ;  judgment  must  also  regularly  go 
against  him.  For  as  the  fault  in  the  issue  com- 
menced on  his  part — his  traverse  being  bad  in 
law ;  and  it  being,  moreover,  found  to  be  false  in 
fact ;  it  is  deemed  unreasonable  to  grant  him  the 
indulgence  of  a  repleader.  Yet,  if  the  verdict  were 
for  the  same  party ;  a  repleader  would,  regularly, 
be  awarded,  on  the  grounds  stated  in  the  foregoing 
sections,  and  in  the  last  preceding  note. 

§  33.  By  the  common  law,  the  same  diversity 
prevai}s?  as  to  the  awarding  or  refusal  of  a  replead- 
er, when  the  verdict  is  founded  on  an  issue,  includ- 
ing both  what  is  material,,  and  what  is  not  so — in 
other  words,  when  the  traverse,  on  which  the  issue 
was  joined,  is  a  negative  pregnant ;  in  which  case,  if 
the  verdict  is  for  the  party  tendering  the  traverse, 
the  judgment  must,  by  the  common  law,  be  arrest- 
ed, and  a  repleader  awarded ;  though  if  the  verdict 
were  against  him,  judgment  would  pass  against 
him(o). 

/ 
^  34.     The  reason  of  this  diversity,  in  regard  to 

the  effect  of  the  verdict,  when  the  issue  is  joined  on 
a  negative  pregnant,  has  been  already  suggested, 
(ch.  6,  §  34)  :  viz.  that  when  a  verdict  is  found  on 

(n)  Doug.  396.  747.  749.  Com.  Dig.  Pleader,  R.  18.  1 
Saund.  308.  2  Ib.  319.  b.  (n.  6.)  Tidd,  824.  1  H.  Black.  644. 
1  Ld.  Ray.  170.  8  Mod.  174. 

(o)  Co.  Litt.  126.  a.  303.  a.  Gilb.  H.  C.  P.  147.  2  Saund. 
319.  (n.  6.)  iBurr.  302. 


OF  ARREST  OF  JUDGMENT  AND  REPLEADER.  £J 

such  an  issue,  and  the  only  fault,  in  the  pleading,  is     CHAP. 
in  the  issue,  the  finding,  if  against  the   party  tender-       x. 
ing  the  issue,  will  generally,  and   I  trust,  universally, 
show  that  judgment  ought  to  go  against  him  ;  al- 
though a  verdict  for  him  would  determine  nothing 
material  to  the  merits  of  the  cause. 

§  35.  Thus,  as  heretofore  stated,  (ch.  6,  §  34), 
if  to  a  plea,  that  the  plaintiff  has  released  the  cause 
of  action,  since  the  date  of  the  writ,  he  traverses  that 
he  has  released  '  since  the  date  of  the  writ' — thus 
making  the  time,  which  is  immaterial,  parcel  of  the 
issue  ;  a  verdict  for  the  defendant  would  be  plainly 
decisive  in  his  favor,  and  entitled  him  to  judgment : 
Whereas,  a  finding  for  the  plaintiff- — the  party  who 
tendered  the  traverse — would  as  plainly  be  indeci- 
sive ;  as  being  consistent  with  the  supposable  fact 
of  a  release,  before  the  date  of  the  writ.  For  the 
verdict  ascertains  nothing  more,  than  that  the  alleg- 
ed release  was  not  made  after  the  date  of  the  writ 
— leaving  the  question,  whether  there  was  any  re- 
lease given  at  any  time,  undetermined.  And  there- 
fore, according  to  the  principles  of  the  common  law, 
the  judgment  must,  in  the  case  last  supposed,  be  ar- 
rested, and  a  repleader  awarded  ;  though  under  the 
before  mentioned  statute  32  H.  8,  c.  30,  the  issue, 
in  this  case  also,  is  now  made  good  by  the  verdict, 
and  the  party,  tendering  the  traverse,  entitled  to 
judgment. 

^  36.  So  also,  if  in   debt  or  assumpsit,   the  de- 
fendant pleads  a  tender,  on  a  certain  day  ;  and  the 


512  OF  ARREST  OF  JUDGMENT  AND  REPLEADElt. 

CHAP,    replication  denies  that    such  tender  was  made  on 
x.       that  day,  (a  denial,  which  is  a  mere  negative  preg- 

nani)  ;  a  verdict  for  the  defendant  would  entitle  him 

to  judgment ;  while  a  finding  for  the  plaintiff,  who 
tendered  the  issue,  would  not  show  for  whom  judg- 
ment ought  to  be  given.  And  therefore  in  this,  as 
in  the  last  preceding  case,  the  judgment  must,  ac- 
cording to  the  principles  of  the  common  law,  be  ar- 
rested, and  a  repleader  awarded.  And  this  diveristy, 
between  the  effect  of  a  verdict  for,  and  one  against, 
the  party,  tendering  the  issue  on  a  negative  pregnant, 
will  be  found  to  exist,  in  every  example  of  such  an 
issue,  heretofore  given  in  this  treatise,  and  probably 
to  all  issues  of  the  same  kind(5). 


(5)  Though  issues,  joined  on  negatives  pregnant,  are  regularly 
aided,  under  the  before  mentioned  statute,  32  H.  8,  c.  30,  by  a 
verdict  either  way,  (ante,  §§  31.  35)  ;  yet  this  is  not  universally 
the  case.  In  one  instance  at  least,  an  issue  of  this  kind,  if  found 
for  the  party  tendering  it,  is  not  aided  by  the  statute.  The  in- 
stance referred  to,  is  that  of  debt  on  an  obligation  payable  on,  or 
before,  a  particular  day  (as  the  30//t  of  January),  and  a  plea  of 
payment  before  the  day,  as  on  the  10//i  of  the  same  January  :  In 
which  case,  if  the  plaintiff  replies  only,  that  the  defendant  did  not 
pay  '  on  the  10th  of  January',  and  the  jury  find  for  the  plaintiff'; 
the  finding  is  immaterial,  and  a  repleader  must  still  be  awarded — 
though  a  verdict  for  the  defendant  would  have  been  decisive,  and 
have  entitled  him  to  judgment,  (2  Stra.  994.  3  Black.  Com.  395. 
2  Burr.  944.  1  Ib.  301-2.  Com.  R.  148.)  Now,  though  the 
issue,  tendered  in  this  case,  appears  clearly  to  be  only  a  negative 
pregnant,  it  is  nevertheless  not  cured,  under  the  above  statute, 
by  a  verdict  for  the  plaintiff,  for  a  reason,  peculiar  to  this  particular 
case,  and  which  has  been  heretofore  stated,  ch.  7,  §  54. 


OF  ARREST  OF  JUDGMENT  AND  REPLEADER.  5] 3 

^  37.  The  foregoing  rules  and  examples,  from  the    CHAP. 
28th  section,  inclusive,  are  intended  to  explain  the       x. 

object,  and  the  effect,  of  motions  in  arrest  of  judg-  

ment,  when  the  only  substantial  defect  in  the  plead- 
ings is  in  the  issue,  on  which  the  verdict  has  been 
found.  But  the  effect  of  such  motions  may  be  varied 
essentially  from  those  stated  in  the  foregoing  sections, 
by  radical  defects  in  the  pleadings,  which  precede  the 
issue,  and  which  would  render  a  repleader,  or  arrest 
of  judgment,  nugatory.  For  courts  ought  never  to 
award  a  repleader,  or  to  arrest  judgment,  for  faults 
in  the  issue,  when  it  is  apparent,  that  no  useful  end 
can  be  attained,  by  so  doing(p). 

§  38.  And  therefore,  if  it  is  apparent  to  the  court, 
from  the  whole  record,  that  no  manner  of  joining 
issue  could  avail  the  party  against  whom  the  verdict 
is  found — or  in  other  words,  that  no  issue,  which 
could  be  tendered  upon  the  MATTER  of  his  pleading, 
as  it  is  alleged,  or  in  any  form,  in  which  it  could  be 
alleged,  would  be  a  material  issue  ;  a  repleader  can- 
not legally  be  awarded,  nor  judgment  arrested,  at  his 
instance,  for  any  fault  in  the  issue  joined(^).  Thus, 
if  the  declaration  is  good — the  plea  in  bar  totally 
void  of  substance — and  issue  joined  on  any  part,  or 
the  whole  of  the  plea,  and  verdict  is  for  the  plain- 
tiff'; he  is  entitled  to  judgment — the  immateriality 
of  the  matter  of  the  issue  notwithstanding.  For  in 

(/))   1  Stra.  397.     Com.  Dig.  Pleader,  R.  18. 

(7)  1  Burr.  301.  Cowp.  510.  Bac.  Abr.  Pleas,  &c.  M. 
Com.  Dig.  Pleader,  R.  18.  1  Stra.  394.  397.  398.  1  Salk.  173. 
4  Burr.  2143.  2146. 


514  OF  ARREST  OF  JUDGMENT  AND  REPLEADER. 

CHAP.  such  a  case,  it  would  be  plainly  nugatory  to  award 
x.  a  repleader ;  since  no  possible  issue,  tendered  upon 
such  a  plea,  or  upon  the  matter  of  it,  in  whatever 
manner  alleged,  could  decide  the  merits  of  the  cause. 
And  it  would  be  as  plainly  improper,  to  arrest  the 
judgment — inasmuch  as  the  plaintiff  appears,  from 
the  whole  record,  clearly  entitled  to  it(r). 

^  39.  If,  in  trespass,  for  example,  the  defendant 
pleads,  as  a  justification,  matter,  which  however 
stated,  could  not  amount  to  a  justification  in  law, 
and  on  a  traverse  of  the  plea,  the  verdict  is  for  the 
plaintiff;  the  latter  is  immediately  entitled  to  judg- 
ment^). For,  upon  the  grounds  last  mentioned,  a 
repleader  would  be  nugatory ;  and  as  the  whole  re- 
cord shows  a  right  of  recovery,  in  the  plaintiff;  it 
would  be  unjust  to  arrest  the  judgment. 

^  40.  'If  however,  the  matter  of  the  plea,  in  the 
case  last  supposed,  had  been  substantially  a  good 
justification  in  law,  but  so  inaccurately  alleged,  as 
to  render  the  traverse  of  it  immaterial,  and  the  ver- 
dict, as  before  supposed,  for  the  plaintiff;  judgment 
must  have  been  arrested,  and  a  repleader  award- 
ed^) :  Because,  in  the  case,  as  now  stated,  it  would 
appear  from  the  record,  that  a  good  issue  might  be 
formed,  upon  the  matter  of  the  plea,  when  properly 
pleaded ;  and  when  this  is  the  case,  the  ends  of  jus- 

(r)   1  Stra.  394.  397.  398.     1  Salk.  173.     2  Pick.  614. 
(s)  1  Stra.  398.     1  Burr.  302. 
(0  lid. 


OF  ARREST  OF  JUDGMENT  AND  REPLEADER. 

tice  require  that  an  opportunity,  for  forming  such  an    CHAP. 
issue,  should  be  afforded.  x. 


^41.  It  is,  therefore,  a  general  rule,  that  when- 
ever the  matter  of  the  pleading,  on  which  the  issue 
has  been  joined,  is  sufficient  in  substance,  but  so  in- 
correctly pleaded,  as  to  render  the  issue  and  finding 
indecisive,  and  the  verdict  is  for  the  party  tendering 
the  issue  ;  the  judgment  must  be  arrested  and  a  re- 
pleader  awarded(w)  :  It  being  deemed  reasonable, 
that  after  verdict,  such  mere  inaccuracies  should  be 
corrected. 

§  42.  In  conformity  to  this  principle  is  the  fol- 
lowing case : — To  debt  on  bond,  the  defendant 
pleaded  usury — counting  upon  the  statute  of  usury, 
'  made  of  the  sixth  of  Feb.'  13  Eliz.  (whereas  the 
statute  was  actually  passed  on  the  second  of  Feb.) 
The  plaintiff  replied,  that  the  obligation  was  not 
made  for  usury,  &c.  '  against  the  form  of  the  statute, 
in  manner  and  form  aforesaid.'  This  issue  was 
found  for  the  defendant ;  but,  as  statutes  of  usury 
are,  in  their  nature,  public  acts  ;  the  court  knew  ju- 
dicially, that  no  such  statute  existed,  as  that  pleaded 
by  the  defendant ;  and  therefore  held  the  finding  to 
be  clearly  incorrect,  and  nugatory.  put  as  the 
ground  of  the  defence,  (usury),  was  in  substance 
sufficient  in  law  ;  and  as  the-  issue  and  finding  were 
faulty,  only  in  consequence  of  an  inaccuracy  in  the 
mode  of  pleading  that  defence  ;  the  court  refused  to 

(«)    Cro.  Eliz.  245.     1  Burr.  302. 


516  OF  ARREST  OF  JUDGMENT  AND  REPLEADER. 

CHAP.    giye  judgment  for  the  plaintiff,  as  the  case  stood,  and 
x.       awarded  a  repleader(v).     For  it  was  apparent,  that 

the  matter  of  the  defence  might  be  so  pleaded,  as 

to  form  the  subject  of  a  good  issue(6)  :  Whereas, 
when  the  pleading,  on  which  the  issue  is  joined, 
contains  no  substance,  or  none  which  could,  in  any 
form  of  statement,  avail  the  pleader,  the  awarding 
of  a  repleader  would,  as  has  been  before  shown 
(ante,  §  38),  be  altogether  useless :  Since  no  manner 
of  pleading  the  same  matter  could  form  the  subject 
of  a  material  issue  ;  nor  would  it  be  possible,  in  such 
a  case,  to  lay  the  foundation  of  such  an  issue,  unless 
the  pleader  were  allowed,  on  pleading  anew,  to 
abandon  the  whole  matter,  first  pleaded  by  him,  and 
to  allege  a  new  and  distinct  ground  of  demand,  or 
defence — which  can  never  be  allowed,  as  it  would 
be,  in  effect,  allowing  a  departure. 

^  43.  In  some  cases,  the  greatest  defects  in  the 
issue  are  not  a  sufficient  ground  for  arresting  judg- 
ment, after  verdict.  For  if  there  be  a  radical  de- 
fect, in  any  of  the  previous  stages  of  the  pleadings, 
and  if  the  first  defect,  of  this  kind,  is  on  the  part  of 
him  who  moves  in  arrest  of  judgment ;  the  motion 
cannot  prevail :  Since  in  every  such  case,  it  must  be 

(«)   lid. 

(6)  In  this  case,  the  verdict  was,  indeed,  against  the  party  ten- 
dering the  issue  ;  but  as  it  was  judicially  known  to  the  court,  and 
appeared,  necessarily,  from  the  record,  that  the  finding  was  legally 
untrue  ;  the  determination  was  the  same,  as  if  the  verdict  had  been 
for  him,  who  tendered  the  issue — the  plaintiff. 


OF  ARREST  OF  JUDGMENT  AND  REPLEADER. 

apparent,  from    the  whole    record,  that   judgment    CHAP. 
ought  to  pass  against  him.     Thus,  if  an  immaterial       x. 
issue  is  joined  upon  a  good  replication,  and  found  for 
the  defendant ;  still  if  the  declaration  is  radically  de- 
fective, the  defendant  is  entitled  to  judgment.     For 
it  would  be  useless  to  arrest  the  judgment,  at  the 
plaintiff's   instance  ;  since    he  could,    by   no   possi- 
bility, be  entitled  to  judgment  upon  such  a  declara- 
tion (w). 

§  44.  And  although  the  particular  part  of  the 
pleadings,  on  which  the  issue  is  joined,  be  good,  and 
the  issue  and  finding  be  on  a  material  point ;  yet  if 
there  exists  a  radical  fault,  (and  that  the  first),  in 
the  previous  pleading  of  him,  for  whom  the  verdict 
is  found  ;  judgment  must,  regularly,  upon  the  fore- 
going principles,  be  arrested(V).  Thus,  if  to  a  de- 
claration, defective  in  substance,  the  defendant  pleads 
a  substantial  defence,  (as  a  release  of  the  action), 
and  upon  a  traverse  of  the  plea,  the  verdict  is  for 
the  plaintiff';  judgment  must  be  arrested.  For 
there  appears,  upon  the  whole  record,  to  be  no  right 
of  action. 

§  45.  And  whenever  the  merits  of  a  motion  ill 
arrest  of  judgment  depend  upon  the  sufficiency  of 
any  of  the  previous  pleadings,  the  governing  princi- 
ple appears  to  be,  that  judgment  ought  never  to  be 
given  for,  nor  arrested  in  behalf  of,  that  party,  in 
whose  pleading  the  first  substantial  defect  is  found. 

(w)   1  Ld.  Ray.  170.     Hob.  56.  199.  200.     8  Co.  120.  b. 
(x}  lid. 

66 


518  OP  ARREST  OF  JUDGMENT  AND  REPLEADER. 

§  46.  In  some  cases,  where  the  party,  who  has 
obtained  a  verdict,  is  not  entitled  to  judgment  upon 
it,  the  court  not  only  arrest  judgment  in  pursuance 
of  the  verdict ;  but  immediately  render  judgment  in 
chief,  veredicto  non  obstante — i.  e.  in  favor  of  the 
party,  against  whom  the  verdict  has  been  found. 
But  this,  it  seems,  is  done  only  in  very  clear  cases, 
where  there  can  be  no  doubt,  that  the  party,  against 
whom  the  issue  is  found,  is,  upon  the  whole  record, 
entitled  to  judgment(?/).  This  is  done,  for  exam- 
ple, where  a  plea  in  bar,  confessing  a  good  declara- 
tion, is  clearly  frivolous,  or  so  totally  destitute  of 
substance,  as  to  constitute  no  semblance  of  a  legal 
defence  :  In  which  case,  (the  right  of  recovery  being 
confessed),  to  withhold  from  the  plaintiff  a  judg- 
ment in  chief,  would  be  a  virtual  denial  of  justice. 
The  judgment,  in  such  cases,  however,  is  given  as 
upon  confession,  (the  right  of  action  being,  in  law, 
confessed  by  the  plea),  without  regard  to  the  ver- 
dict(z) ;  as  the  latter  decides  nothing,  either  way. 

^  47.  The  awarding  of  a  repleader,  when  it 
ought  to  be  refused,  or  the  refusal  of  it,  when  it 
ought  to  be  awarded,  is  error(a)  :  As  the  mistake 
must  be  to  the  prejudice  of  one,  or  the  other,  of  the 
parties. 

(y)  6  Mod.  2.  1  Ld.  Ray.  641.  1  Stra.  394.  Cro.  Eliz.  214. 
8  Taunt.  413.  1  Chit.  PI.  634.  Yelv.  24,  (n.  1.)  Hob.  56. 
(n.  4.)  Williams'  ed.  3  B.  &  A.  710.  4  Ib.  564.  8  Mass.  R. 
261.  5  Pick.  187. 

(*)  lid. 

(a)  6  Mod.  2.  2  Saund.  319.  b.  (n.  6.)  2  Salk.  579.  1 
Day,  27.  152.  1  Chitt.  PI.  633. 


OF  ARREST  OF  JUDGMENT  AND  REPLEADER.  5J9 

§  48.  When  judgment  is  arrested,  for  any  in-  CHAP. 
sufficiency  in  the  issue,  or  other  part  of  the  plead-  x. 
ings,  no  costs  are  allowed  to  either  party(fr) — not 
to  the  party,  on  whose  motion  the  judgment  has 
been  arrested ;  because  he  might  have  taken  advan- 
tage of  the  insufficiency  of  his  adversary's  pleading, 
in  an  earlier  stage  of  the  proceedings,  by  demurring, 
and  thus  have  prevented  the  delay,  and  expense  of  a 
trial — not  to  him,  against  whom  the  motion  has 
prevailed ;  because,  having  no  merits,  he  cannot  be 
entitled  to  recover  any  thing. 

§  49.  A  repleader  can  properly  be  awarded,  only 
after  an  issue  in  fact  (joined  arid  tried)(c)  :  The 
main  object  of  awarding  it,  being,  as  we  have  seen 
(ante,  §  29),  to  enable  the  parties  to  substitute  a 
good  issue,  for  a  bad  one.  It  seems,  however,  that 
before  the  statutes  of  jeofails,  repleaders  were 
awarded,  as  well  before  as  after  the  trial  of  the 
issue ;  because,  in  general,  defects  in  the  issue 
could  not  at  common  law,  be  cured  by  verdict.  But 
now  a  repleader  is,  regularly,  not  awarded,  until  the 
issue  has  been  tried(d)  ;  because,  under  those  sta- 
tutes, a  verdict  may  possibly  cure  the  fault  in  the 
issue,  and  thus  supersede  the  necessity  of  replead- 
ing ;  and  this  point  the  court  will  not,  generally, 

(6)  2  Salk.  579.  6  Mod.  2.  Com.  Dig.  Pleader,  R.  18.  2 
Vent.  196.  1  T.  R.  267.  1  Stra.  617.  Cowp.  407.  1  Chitt.  PI. 
639. 

(c)  3  Salk.  306.  2  Saund.  319.  b.  (n.  6.)     2  Salk.  579.    Bac. 
Abr.  Pleas,  &c.  M.  1.  3.     Com.  Dig.  Pleader,  R.  18.     6  Mod. 
3.  102.     Carth.  371. 

(d)  lid. 


520  OF  ARREST  OF  JUDGMENT  AND  REPLEADER. 

CHAP,     decide  by  anticipation ;  but  will  await  the  finding  of 
x.        the  jury. 

§  50.  A  repleader  cannot  be  awarded,  after  a 
demurrer(ej.  For  by  the  demurrer,  the  parties 
have  put  themselves  upon  the  judgment  of  the 
court :  arid  as  the  demurrer  reaches  back,  through 
the  whole  record  ;  the  issue  in  law,  raised  by  it, 
cannot,  in  the  nature  of  the  thing,  be  immaterial  or 
indecisive,  as  an  issue  in  fact  may  be.  And  on  simi- 
lar grounds,  a  repleader  cannot  be  awarded,  after  a 
writ  of  error (f). 

§  51.  Again — no  repleader  can  be  awarded,  after 
a  default,  or  discontinuance  (g) ;  not  only  because 
there  is,  in  such  case,  no  issue  tried,  but  also  because 
the  default,  or  discontinuance,  is  a  waiver  of  all 
further  pleading,  as  well  as  an  abandonment  of  all 
that  may  have  been  before  pleaded,  by  the  party 
defaulted,  or  discontinuing. 

§  52.  The  regular  course,  on  a  repleader  award- 
ed, is,  for  the  pleadings  to  recommence,  at  that 
stage,  at  which  the  first  deviation  from  good  plead- 

(e)  Poph.  42.  Sav.  89.  Latch,  148.  3  Salk.  306.  6  Mod. 
102.  2  Saund.  319.  b.  (n.  6.)  Com.  Dig.  Pleader,  R.  18.  5 
Co.  52.  Bac.  Abr.  Pleas,  &c.  M.  3.  2  Lev.  12.  1  Chitt.  PI. 
634. 3  Lev.  20.  440.  cont. 

•        (/)  lid- 

(g-)  Bac.  Abr.  Pleas,  &c.  M.  3.  6  Mod.  3.  Com.  Dig. 
Pleader,  R.  18.  2  Salk.  579.  Comb.  323.  2  Saund.  319.  b. 
(n.  6.)  1  Chitt.  PI.  633. 

/ 

" 


OF  ARREST  OF  JUDGMENT  AND  REPLEADER. 

ing   occurred — or   rather,  at   the  first   fault,  which    CHAP. 
occasioned  the  immateriality  of  the  issue(/i).  x. 


^  53.  If  therefore,  the  only  substantial  fault  is 
in  the  traverse,  which  tendered  the  immaterial  issue  ; 
the  pleading  is  to  commence  de  novo,  from  that 
point,  by  the  tender  of  a  new  traverse(^).  But  if 
the  pleading,  on  which  the  issue  was  first  ten- 
dered,— whether  it  be  the  declaration,  plea  in  bar, 
replication,  or  other  part  of  the  pleading — be,  (al- 
though good  in  substance),  so  incorrectly  framed,  as 
to  render  the  issue,  tendered  upon  it,  immaterial ; 
the  repleading  must  begin,  at  the  same  stage  or  part 
of  the  pleadings — in  order  that  it  may  be  so  cor- 
rected, as  to  furnish  the  subject  of  a  material  is- 
sue^). 

^  54.  But  though  the  immediate  object  of  replead- 
ing is  only  to  produce  a  good  issue;  yet,  as  the 
award  of  a  repleader  is  in  general  terms — '  quod 
paries  replacitent ;'  either  party,  it  seems,  may  avail 
himself  of  this  general  award,  for  the  purpose  of 
correcting  all  mere  inaccuracies,  in  any  part  of  his  pre- 
vious pleading — though  not  for  the  purpose  of  al- 
leging any  new  and  distinct  ground  of  demand,  or 
defence(7). 

(/i)  1  Ld.  Ray.  169.  Com.  Dig.  Pleader,  R.  18.  2  Saund. 
319  b.  (n.  6.)  6  Mod.  2.  2  Salk.  579.  T.  Ray.  458.  1 
Burr.  301.  302.  3  Black.  Com.  395. 

(»)   lid.      2  Vent.  196.     2  Stra.  994. 

(k)   lid. 

(/)   1  Ld.  Ray.  169.     Com.  Dig.  Pleader,  R.  18.  2  Salk.  579. 


522  OF  ARREST  OF  JUDGMENT. 

§  55.  II.  Judgment  is  sometimes  arrested,  when 
the  pleadings  are  good,  for  faults  in  the  verdict(m). 
If  the  verdict  varies  substantially  from  the  issue,  (as 
if,  instead  of  finding  the  matter  in  issue,  either  way, 
the  jury  find  something  foreign  to  it)  ;  judgment 
must  be  arrested — because  the  finding  does  not  as- 
certain the  matter  of  fact  in  issue,  and  cannot  there- 
fore show,  for  which  party  judgment  ought  to  be 
given  (n). 

§  56.  The  rule  is  the  same,  when  the  verdict 
finds  only  part  of  the  matter  in  issue — omitting  to 
find,  either  way,  another  material  part(o).  For  it 
is  the  duty  of  the  jury  to  ascertain,  and  that  of  the 
court  to  give  judgment  upon,  all  the  material  facts, 
put  in  issue  by  the  pleadings.  But  a  verdict,  find- 
ing the  whole  substance  of  the  issue  is  good — al- 
though it  be  silent,  as  to  what  is  immaterial(p)  : 
Since  the  latter  cannot  affect  the  merits  of  the  con- 
troversy. 

§  57.  A  verdict,  finding  the  whole  issue,  or  the 
substance  of  it,  is  not  vitiated,  by  finding  more(q). 
For  the  finding  of  what  was  not  in  issue,  is  but  sur- 
plusage ;  and  utile  per  inutile  non  vitiatur. 

(m)  Bac.  Abr.  Verdict,  M. 

(n}  2  Roll.  Abr.  707.  719.     Bac.  Abr.  Verdict,  0.    2  Vent.  151. 

(o)  Cro.  Eliz.  133.  Andr.  156.  Bac.  Abr.  Verdict,  M.  3 
Leon.  82.  2  Stra.  1089. 

(p)  Co.  Litt.  227.   a. 

(q)  Reg.  PI.  219.  6  Co.  46.  Bac.  Abr.  Verdict,  N.  6 
Mass.  R.  304.  • 


OF  ARREST  OF  JUDGMENT.  523 

§  58.  In  general,  where  one  count  in  a  declara-  CHAP. 
tion  is  good,  and  another  substantially  ill,  if  the  jury,  x. 
upon  a  plea  to  the  whole  declaration,  or  upon  a  de- 
fault, find  a  general  verdict  for  the  plaintiff,  with 
entire  damages,  (i.  e.  without  discriminating  in  the 
assessment  of  the  damages,  between  the  different 
counts)  ;  the  defendant  may  arrest  the  judgment ; 
or  if  judgment  is  giv-en,  in  pursuance  of  the  verdict, 
may  reverse  it  by  writ  of  error (r).  For  it  is  impos- 
sible for  the  court,  judging,  as  it  must,  from  the 
record  alone,  to  discover,  on  which  count  the  dama- 
ges were  assessed,  or  what  proportion  of  them  may 
have  been  assessed  on  the  one,  or  the  other ;  and 
the  jury,  as  the  law  presumes,  are  as  likely  to  have 
assessed  them,  on  a  bad  count,  as  on  a  good  one(7). 

(r)  1  T.  R.  151.  508.  532.  3  Ib.  435.  2  Saund.  171.  b.  (n. 
1.)  Bac.  Abr.  Damages,  D.  3.  Cro.  Eliz.  329.  Bull.  N.  P.  8. 
2  II.  Black.  318.  Doug.  731.  1  Caines.  R.  347.  2  Mass.  R. 
53.  408.  5  Greenleaf,  446.  9  Pick.  547. 

(7)  In  Grant  v.  Jlstle,  (Doug.  730),  Lord  Mansfield  expressed 
his  disapprobation  of  this  rule,  as  being  '  inconvenient  and  ill- 
founded'  ;  and  the  courts  of  several  of  the  United  States  have 
rejected  it,  (2  Connect.  R.  324.  338.  2  Bay,  204.  439.  1  Hen. 
&  Munf.  361.)  Yet,  no  rule  appears  to  be  more  clearly  warrant- 
ed, by  the  original  principles  of  law,  than  this.  For  the  judgment 
of  the  court,  which  is  only  an  inference  of  law,  from  the  facts  as- 
certained upon  the  record,  must  always  be  formed  from  the  face 
of  the  record  itself,  and  from  that  alone.  And  as  the  jurors  are, 
and  must  be,  presumed  to  know  nothing  of  the  sufficiency  or  in- 
sufficiency of  counts  ;  the  conclusion  seems  perfectly  just,  in  legal 
theory,  that  the  damages  are  as  likely  to  have  been  assessed,  in 
part,  or  in  whole,  upon  a  bad  count,  as  upon  a  good  one.  In 


524  OF  ARREST  OF  JUDGMENT. 

CHAP.        §  59.  The   above  rule,   however,  applies  only  to 
x.       civil  actions.      If  therefore,   an  indictment  contains 

several  counts,  of  which  one  is  good,  and  the  others 

ill ;  the  court,  on  a  general  verdict  of  '  guilty',  will 
award  the  punishment,  on  the  good  counts  only(s). 
But  this  rule  is,  in  no  degree,  inconsistent  with  the 
principle  of  that  which  prevails,  in  civil  suits.  For, 
in  criminal  cases,  no  damages  are  assessed ;  nor  is 
it  the  province  of  the  jury  to  decide  upon  the 
punishment,  incurred  by  the  offence.  This  is  to  be 
determined,  exclusively  by  the  court;  whose  proper 
duty  it  is,  to  judge  of  the  sufficiency  of  the  several 
counts,  and  to  give  sentence  against  the  prisoner, 
upon  that,  or  those,  only,  which  they  find  to  be  suffi- 
cient in  law. 

§  60.,  In  civil  cases  also,  where  the  declaration 
contains  a  good  and  a  bad  count,  and  a  general  ver- 
dict is  found  for  the  plaintiff,  with  entire  damages  ; 
if  it  appears,  from  the  notes  of  the  judge,  before 
whom  the  trial  was  had,  that  no  part  of  the  evi- 
dence, exhibited  to  the  jury,  applied  to  the  bad 
count ;  the  verdict  may  be  amended,  by  order  of  the 
court,  so  as  to  apply  to  the  good  count  only  :  After 

(*)  2  Burr.  985.  Doug.  730.  1  Bos.  &  P.  186-7.  1  Salk. 
384.  2  Ld.  Ray.  886.  1  Johns.  R.  322. 

regard  to  the  alleged  practical  inconvenience  of  the  rule,  courts, 
not  bound  by  it,  are  doubtless  at  liberty  to  judge  for  themselves  ; 
but  material  deviations  from  well  established  principles  of  the  com- 
mon law,  are,  in  general — to  say  the  least — of  very  questionable 
expediency. 


OF  ARREST  OF  JUDGMENT.  525 

which  amendment,  the  court  will  give  judgment,  (in   CHAP. 
pursuance  of  the  verdict),   for  the  plaintiff,  on  that       x. 

count   only(().     For,    as    the    verdict    stands,    after 

the  amendment,  and  before  judgment  is  given,  it 
appears  from  the  face  of  the  record  itself,  that  the 
damages  were  assessed  only  on  the  good  count. 

§  61.  If  the  jury  assess  damages  separately,  upon 
each  of  the  counts,  where  some  are  good,  and  others 
ill ;  the  court  will  arrest  the  judgment  on  the  bad 
counts  only  ;  and  give  judgment  for  the  plaintiff,  for 
the  damages  assessed  on  those  which  are  good(w)  : 
For  in  this  case,  the  record  will  distinctly  show,  to 
what  part  of  the  damages  assessed,  the  plaintiff  is 
by  law  entitled,  and  to  what  part  of  them  he  has  no 
legal  claim  ;  and  the  court  is  thus  enabled  to  distin- 
guish between  them,  in  giving  judgment. 

^  62.  If,  in  a  special  verdict,  the  jury  find  only 
the  evidence  of  a  material  fact,  instead  of  the  fact 
itself,  or  otherwise  omit  to  find,  upon  such  a  fact, 
either  way  ;  no  judgment  can  be  rendered  upon  the 
finding,  for  either  party  :  Since  a  matter  of  fact, 
essential  to  the  determination  of  the  cause,  is  left 
unascertained  by  the  verdict(V).  Thus,  if  in  trover, 
on  the  general  issue  pleaded,  the  jury  return  a  spe- 
cial verdict,  finding  the  property  in  the  goods  to  be 

(t)  Doug.  376.  1  Saund.  171.  b.  (n.  1.)  1  Bos.  &  P.  329.  7 
Mass.  R.  358.  2  Johns.  Gas.  18.—  Vid.  1  H.  Black.  78.  6 
Taunt.  67. 

(it)  3  T.  R.  433.  435.  Stra.  189.  808.  4  Burr.  2022.  Vid. 
6  Taunt.  629. 

(»)  10  Co.  56-7.    3  Burr.  1243.    1  East,  111.     Esp.  Dig.  590. 

67 


OF  ARREST  OF  JUDGMENT. 

CHAP.  m  tne  plaintiff — the  loss  of  them,  by  him — the 
x.  finding  of  them,  by  the  defendant — and  the  refusal 
of  the  latter  to  restore  them,  on  the  plaintiff'1  s  demand 
— without  showing  any  fact,  either  amounting  to  a 
conversion,  or  disproving  it ;  the  court  can  render 
no  judgment  upon  the  verdict(w).  For  the  conver- 
sion, which  is  the  gist  of  the  action,  is  neither 
found,  nor  denied,  by  it  ;  the  demand  and  refusal 
being  only  prima  facie  evidence  of  a  conversion. 

§  63.  In  all  the  foregoing  cases,  in  which  judg- 
ment is  arrested  for  defects  in  the  verdict,  a  venire 
de  novo,  must  be  awarded — i.  e.  another  jury  must 
be  summoned,  to  try  the  same  issue(.r)  ;  but  no 
repleader  is  awarded  in  such  a  case — the  fault  be- 
ing, not  in  the  pleading,  but  in  the  verdict. 

(w)  lid. 

(a?)  Bac.  Abr.  Verdict,  M.  Doug.  377-8.  10  Co.  118.  119. 
2  Stra.  1052-3.  6  T.  R.  691. 


THE       END. 


INDEX. 

*^*TJie  numerals  stand  for  Chapters — the  figures  for  Sections. 

ABATEMENT,  pleas  in  v,  62-160 

office  of  v,  64.  (n.  8) 

certainty  required  in  iii,  57.  58 

must  give  the  plaintiff  a  better  writ       v,  67 

causes  of  v,  68-138 

misnomer  v,  69-84 

coverture  v,  85-89 

death  of  parties  v,  90-96 

variance  v,  97-101 

nonjoinder  and  misjoinder  of  parties  v,  102-121 

pendency  of  a  prior  suit  v,  122-131 

faults  in  the  writ  v,  132-136 

the  action  misconceived  v,  137 

manner  of  pleading  v,  141—152 

the  beginning  and  conclusion  of         v,  142-153 

judgment  on  v,  159 

matter  of  waved,  unless  pleaded  v,  153 

of  part  of  the  writ,  or  demand  v,  157 

judgment  on  plea  in,  when  interlocutory,  and 

when  final  v,  158.  159 

Jlbsque  hoc,  meaning  and  use  of  vii,  6.  7.  8 

must  be  followed  by  an  affirmative  vii,  41 

Actionem  non  vi,  120 

ACTION,  pleas  to  the  ii,  38.  39;  vi,  1-121 

gist  of  iii,  7;  iv,  154 

when  local,  and  when  transitory  iii,  104-131 

showing  a  prima  facie  cause  of,  sufficient  iii,  193 

Affirmative  pregnant  vi,  29.  37 

Aggravation,  what  iii,  10 

matter  of,  needs  no  answer  vi,  109.  110 

Argumentative  pleading,  ill  iii,  28-30.  44-46 

ARREST  OF  JUDGMENT  after  verdict,  for  faults  in  the 

pleadings  x,  1-62 

grounds  of  x,  5.  8-11 

after  a  default  x,  26 


528  IMDEX. 

ARREST  OF  JUDGMUNT  (continued). 

for  faults  in  the  verdict  x,  9.  55-62 

in  the  issue  x,  28-42 
not  awarded  for  him,  who  occasioned  the  fault 

in  the  issue  x,  43-45 

Assault — may  not  be  laid  with  a  continuando  iii,  91.  92 

nor  diversis  diebus,  &c.  iii,  92 

'  assaulted,'  diversis  diebus,  &c.  good  iii,  92 

Jlssumpsit — declaration  in,  must  allege  a  promise  iii,  19 

AVERMENTS — material,  must  be  direct  iii,  28-35 
immaterial  and  impertinent,  difference  between  iii,  183—191 

Avoidance — matter  of,  what  i,  24 

how  to  conclude  iii,  195-198 

Jlvowries  and  cognisances,  nature,  and  use  of  iv,  104-107 

Bar,  pleas  in  ii,  38.  39  ;  vi.  1-121 

Cassetur  breve — (or  billa),  use  of  v,  139 

Certainty — degrees  of,  distinguished  iii,  52-59 

as  to  parties  iii,  60-62 

as  to  time  iii,  63-101 

as  to  subject-matter  iv,  23-37 

color  in  pleading,  vi,  81-84 

Common  Bar — nature  and  use  of  vi,  92,  93 

Condition — precedent,  performance  of  must  be  averred        iv,  13 

subsequent,  need  not  be  counted  upon  iv,  17 

Consideration — how  to  be  alleged,  in  the  declaration  iii,  47 

Consolidation  of  actions,  when  ordered  iv,_103 

Continuando — when  proper  to  be  laid,  and  e  converse  iii,  86-93 

seldom  laid,  of  late  iii,  96 

Corporation — how  to  be  named,  in  suits  iii,  61 

Coverture — of  the  plaintiff,  pleadable  to  her  disability  v,  50-53 

of  the  defendant,  a  good  plea  in  abatement  v,  85-89 

Count — distinction  between,  and  declaration  iv,  2 

use  of  more  than  one  in  the  same  suit  iv,  4 

one  good,  and  others  ill,  effect  of  iv,  6 

Customs,  particular,  to  be  pleaded,  as  facts  iii,  16 

DECLARATION  iv.  1-103 

may  contain  any  number  of  counts  iv,  5 

must  allege  all  that  is  essential  to  a  right  of  action  iv,  7—9 

performance  of  a  condition  precedent     iv,  13 


INDEX.  529 

DECLARATION  (continued). 

need  not  take  notice  of  a  condition  subsequent  iv,  17 

must  contain  certainty  iv,  23 

good  in  part,  and  in  part  ill  iv,  49 

may  be  general,  or  special  iv,  50 

joinder  of  parties  in  iv,  52-78 

causes  of  action  in  iv,  79-98 

misjoinder  of  causes  of  action  in,  effect  of  iv,  98 

how  amendable  iv,  100—102 

DEED — when  to  be  counted  on  iv,  41.  42  ;   viii,  45 

how  much  of,  necessary  to  be  set  out,  in  pleading      iv,  19 
Default — what  defects  are  cured  by  x,  26 

Defence — what,  and  kinds  of  ii,  6—15 

half,  and  whole  ii,  9-11 

office  and  effect  of  ii,  9-13 

DEMURRER — nature  of  ii,  43  ;  ix,  1.  2 

confesses  promises,  to  which  writing  is  neces- 
sary, to  be  written  iv,  45 
in  abatement,  not  allowed                                               v,  155 
is  not  a  plea                                                        ii,  43  ;  ix,  2 
office  of  ix,  4 
what  facts  are  confessed  by,  and  what  not   ix,  5.  6.  24-29 
general,  and  special,  difference  between  ix,  8 
different  offices  of,  under  the 
statute  27  Eliz.  c.  5. 

ix,  9-12.  19.  20.  22 

special,  how  constituted  ix,  16 

to  a  former  demurrer,  not  allowable  ix,  32-34 

refusal  to  join  in,  effect  of  ix,  33 

looks  back  through  the  whole  record  ix,  36-40 

judgment  on  ix,  41.  42 

conclusive,  by  way  of  estoppel          ix,  43.  44 

TO  EVIDENCE  ix,  47-74 

nature  and  use  of,  explained  ix,  47.  48 

must  be  taken  to  the  whole  evidence  of 

the  adverse  party  ix.  52 

what  admissions  must  be  made  in  ix,  56.  61-66 

want  of  the  necessary  admissions  in,  ef- 
fect of  ix,  65-68 
no  exception  to  the  pleadings  can  be 

taken  under  ix,  69 


530 


INDEX. 


DEMURRER  TO  EVIDENCE  (continued). 

offer  of,  overruled,  is  assignable  for  error    ix,  74 
DEPARTURE,  defined  ii,  30  ;  viii,  65-79 

varying  in  an  immaterial  point,  does  not  consti- 
tute viii,  73.  74 
novel  assignment  does  not  constitute  viii,  75-77 
is  fatal,  on  demurrer,  but  aided  by  verdict          viii,  78.  79 
DEVISES — how  to  be  pleaded  iv,  47.  43 
Dilatory  pleas                                                    ii,  31-33  ;  v,  1-160 
kinds  of                                                                   ii,  34  ;  v,  i 
several  allowed  in  one  suit  v,  2-6 
order"of  v,  8 
must  be  verified,  by  affidavit                                          v,  12 
error  assignable  of  the  judgment  upon                         v,  153 
Disability  of  the  plaintiff — pleas  to                                     v,  31-58 
outlawry,  attainder                                                    v,  32-38 
praemunire,  recusancy,  &c.                                             v,  39 
excommunication                                                             v,  40 
alienage                                                                        v,  41-49 
coverture,  infancy                                                        v,  50-57 
the  plaintiff  not  in  esse                                                    v,  58 
how  to  conclude                                                            v,  61 
Discontinuance                                                                vi,  104-107 
Double  pleading — see  Duplicity. 

DUPLICITY — defined  viii,  1 

the  rule  against,  requires  each  plea  to  be  con- 
fined to  a  single  point  viii,  3 
not,  necessarily,  to  a  single  fact                viii,  9.  10 
in  the  declaration                                                   iv,  99.  100 
in  the  pleadings,  which  follow  the  declaration  viii,  3 
different  pleas,  by  several  co-defendants,  do  not 

constitute,  except  in  one  particular  case  viii,  6.  7 

double  pleading,  when  allowed  by  statute  viii,  18-23 

surplusage  does  not  constitute  viii,  16 

exception  to  the  common-law  rule  against,  in- 
troduced by  statute  viii,  18-23 
Effect  legal — pleading  according  to                               iii,  174-182 
Estoppel,  pleas  in  ii,  41 
Evidence,  demurrer  to  (see  Demurrer  to  Evidence'). 
Exceptions,  in  a  covenant,  must  be  set  out                              iv,  20 
Exceptions,  Bill  of                                                    viii,  61  ;  ix,  74 
Fee  simple  estates,  how  to  be  pleaded                              iii,  22.  23 


INDEX.  531 

Fictions  in  pleading  iii>  17-21 

jForwi,  and  substance,  difference  between  ix,  17.  18 

want  of,  how  aided  ix,  22 

GENERAL  ISSUE  vi,  1.  7-38 

in  the  several  personal  actions  vi,  10.  11 

goes  to  the  count  only  vi,  14 

manner  of  concluding  vi,  19 

defences  admissible  under  vi,  38-58 

in  the  original  common-law  actions  vi,  45-59 

in  assumpsit  vi,  47-53 

in  case  ex  delicto  vi,  46.  54—58 

with  an  issint  vi,  64-69 

general  denial,  differing  from  the  form  of,  ill         vi,  89.  90 

General  pleading,  when  allowed  iv,  32  ;  vi,  113— 117 

Gist  of  the  action  iii,  7 

Imparlance — kinds,  and  effects  of  ii,  16-20 

Inducement,  what  iii,  9 

to  a  traverse,  uses  of  vii,  67,  68 

Inferences  of  law,  when  to  be  stated  iii,  15 

ISSUE — how  formed  vi,  1-3 

general  ii,  38-40 ;  vi,  7 

special  ii,  38  ;  vi,  7.  60-62 

immaterial  vi,  27  ;  x,  28-33 

informal  vi,  28 

joined  on  a  negative  pregnant,  ill  x,  31-34 

Joinder  of  parties  iv,  52-78 

Judgment — actions  on,  local  iii,  115 

ofrespondeat  ouster  v,  159 

when  final,  on  pleas  in  abatement  v,  159 

JURISDICTION — pleas  to  v,  13-30 

the  first,  in  the  order  of  pleading      v,  13 

grounds  of  v,  15—25 

manner  of  pleading  to  v,  26 

plea  to,  how  signed  v,  27 

conclusion  of  v,  29 

Justification — must  confess  the  acts  justified  vi,  1 1 1 

Laic,  matter  of,  not  necessary  to  be  alleged  iii,  13 

not  traversable  vii,  48 


532  INDEX. 

Leases,  actions  on,  when  transitory,  and  when  local  iii,  116-123 

Legal  effect,  pleading  according  to  iii,  174-182 

Liberum  tenementum,  plea  of  vi,  91-93 

Local  actions  iii,  105-164 

Material  facts,  how  to  be  alleged  iii,  28-35.  49 

when  alleged,  by  way  of  recital  iii,  42-48 

JWisjoinder  of  actions  iv,  98 

how  amendable  iv,  101.  102 

JModo  et  forma — when  words  of  substance,  and  when  not  vi,  22-26 

Negative  averments — time  not  necessary  to  iii,  98 

nor  place  iii,  164 

conditions,  how  to  plead  to  vi,  113.  119 

pregnant,  ill  vi,  29-33  ;  x,  31-38 

how  aided  vi,  34.  35 

when  not  hurtful  to  the  pleading  vii,  40 

New  matter,  what  iii,  195 

averment  of,  how  to  conclude  iii,  195—198 

JViV  debet,  to  debt  on  bond,  effect  of,  if  not  demurred  to        vi,  12 

Nolle  prosequi  v,  140 

Notice — -when  necessary  to  be  alleged  iv,  15 

Novel  assignment,  what,  and  office  of  vi,  110.  (n.  14)  ;  viii,  75-77 

Ouster,  day  of,  not  necessary  to  be  laid,  in  ejectment  iii,  100 

Oyer,  explained  ii,  21  ;  viii,  32-35 

when  demandable  viii,  33.  56 

how  to  take  advantage  of  viii,  57.  58 

effect  of  a  false  recital,  upon  viii,  59 

wrongful  refusal  of,  assignable  for  error  viii,  60 

ordering  of,  not  assignable  for  error  viii,  60 

prayer  of,  how  to  be  presented  to  the  court  viii,  61 

Particular  estates,  how  to  be  pleaded  iii,  22-27 

Place — material  in  local,  not  so  in  transitory,  actions  iii,  104 

(see  VENUE). 

PLEADING,  (in  general),  nature  of  i,  1-3 

a  logical  process  i,  6—17 

special,  what  i,  18 

general  divisions  of  ii,  3-5.  22-39 

first  stage  of  ii-  3 


INDEX.  533 

PLEADINGS  (continued). 

need  not  aver  what  already  appears  iii,  3 

nor  what  is  implied,  in  what  is  alleged  iii,  6 

need  allege  fads,  only,  and  (sometimes)  con- 
clusions from  them  iii,  12 
of  each  party,  taken  most  strongly  against  himself  iii,  169 
when  aided,  by  the  adverse  party's  pleading  over    iii,  192 
Pleat—  order  of                                                                    ii,  22-26 
on  defendant's  part,  kinds  of  ii,  31 
dilatory                                                             ii,  32-35 
to  the  action                                                  ii,  36-42 
two  or  more,  to  the  action,  when  allowed  by 

statute  viii,  18-23 

what  two  or  more  may  be  pleaded  together        viii,  26.  27 

Precludi  non,  in  replications,  &c.  vi,  121 

PROFERT  of  deeds — what,  and  when  necessary  to  be  made    viii,  32 

when  unnecessary  viii,  47—50 

of  what  writings  required  To  be  made  viii,  39—43 

by  what  parties,  required  to  be  made  viii,  43.  50.  55 

what  parties  are  not  required  to  make  viii,  48.  49 

for  what  causes  dispensed  with,  when  primd 

facie  necessary  viii,  52-54 

when  primd  facie  necessary,  the  special  causes, 

dispensing  with,  must  be  stated  viii,  54 

Protestation — nature,  and  use  of  vii,  57-62. 

is  no  part  of  the  pleadings  vii,  60 

requires  no  answer  vii,  61 

Proviso — in  a  covenant,  need  not  be  set  out  iv,  21 

Puis  darrein  continuance,  pleas  of  vi,  122—126 

may  be  in  bar,  or  abatement  vi,  124 

only  one  allowed,  in  one  case  vi,  125 

QUCK  est  eadem  transgressio — use  of  iii,  79.  80 

Repleader — what,  and  for  what  object  awarded 

x,  29-31.  36-40.  47-52 

for  what  causes  refused  x,  32.  38.  39.  41.  42 

Replevin — is  local  iii,  111 

Repugnancy — effect  of  iii,  171 

Request  (special) — when  necessary  to  be  alleged  iv,  15.  16 

68 


534  INDEX. 

Rien  en  arrere — a  good  plea  to  debt  for  rent  vi,  10 

not  a  good  plea  to  covenant  broken  vi,  1 1 

Scire  facias — any  matter  of  defence,  which  might  have  been 

pleaded,  in  the  original  action,  not  pleadable  to         v,  154 

Simililer — what,  and  use  of  vi,  20.  21 

omission  of,  remediable  by  amendment  vi,  21 

Special  non  estfactum  vi,  64-69 

SPECIAL  PLEA  IN  BAR  vi,  70-126 

how  to  conclude  vi,  74 

in  the  negative,  needs  no  verification  vi,  75 

amounting  to  the  general  issue,  when  allowed, 

and  when  not  vi,  78—85 

manner  of  excepting  to,  in  last  case  vi,  86-88 

alleging  facts,  which  would  prove  the  general 

issue,  good  vi,  94.  95 

must  contain  issuable  matter  vi,  96 

blending  law  and  fact,  ill  vi,  97 

to  the  whole  declaration,  must  answer  the  ivhole 

gravamen  vi,  98.  99 

being  entire,  cannot  be  divided  in  its  effects        vi,  98-100 
two  or  more,  pleadable  to  different  parts  of  the 

complaint,  by  the  common  law  vi,  102.  103 

to  the  whole,  or  the  same  part,  allowed  by  statute  viii,  18—23 
leaving  part  of  the  gravamen  unanswered,  how 

to  take  advantage  of  vi,  105—107 

answering   the  whole  gravamen,   covers   all 

matters  of  aggravation  vi,  110 

form  of  begining,  and  concluding  vi,  120 

Statutes,  private — to  be  recited  iii,  16 

difference  between  pleading,  counting  on,  and 

reciting  iii,  16.  (n.  4) 

Statutes,  misrecital  of,  effect  of  iii,  171 

proviso  in,  need  not  be  set  out  iv,  22 

exceptions  in  the  body  of,  must  be  set  out  iv,  22 

Surplusage  iii,  H 

does  not  vitiate  the  pleading.  iii,  170 

TIME — laid  in  pleading  iii,  63-101 

when  immaterial  iii,  64-66,  71.  72.  82 

must  be  followed  in  the  plea,  &c.      iii,  73-75 


INDEX. 


535 


TIME  (continued). 

laid  with  a  continuando  iii,  86-91 

diversis  diebus,  &c.  iii,'90 

not  necessary  to  negative  matter  iii,  98 

not  necessary,  in  the  count  in  a  real  action  iii,  99 

nor  in  laying  the  ouster,  in  ejectment  iii,  100 

impossible,  the  effect  of  laying  iii,  101 

TRANSITORY  and  LOCAL  ACTIONS  iii,  104-164 

TRAVERSE  vii,  1-68 

defined  vii,  2 

technical  vii,  4 

general,  and  special  vii,  5.  6 

absque  tali  causa  vii,  9 

common  vii,  11-13 

when  proper  vii,  12 

when  an  inference,  from  the  inducement  to  vii,  14.  15 

manner  of  concluding  vii,  16—19 

special,  may,  in  some  cases,  conclude  with  an 

averment,  or  to  the  country  vii,  22.  23 
when  the  conclusion  of  must  be  with  an  averment  vii,  21.  22 

when  to  the  country  vii,  20.  24 

wrong  conclusion  of,  effect  of  vii,  25 

absque  tali  causa,  in  what  cases  proper  vii,  26-30 

when  necessary  to  be  tendered  vii,  32 

when  not  proper  vii,  33.  34 
inducement  to,  sometimes  necessary,  to  prevent 

a  negative  pregnant  vii,  35-37 

not  necessary,  in  all  cases  vii,  38 

upon  a  traverse,  regularly  ill  vii,  42 

allowed,  when  the  first  is  immaterial  vii,  43.  44 

ajter  a  traverse,  allowable  vii,  45 

must  be  upon  a  point,  material  and  issuable  vii,  47.  48 

on  a  single  point  vii,  49-52 

on  matter,  expressly  alleged,  or  implied 

in  what  is  alleged  vii,  53 
when  required  to  embrace  more  than  is  al- 
leged, or  implied  vii,  54 
when  joining  in,  amounts  to  a  denial  of  the  in- 
ducement to  vii,  55 
when  joining  in,  involves  an  admission  of  the 

inducement  vii,  56 


536 


INDEX. 


TRAVERSE  (continued). 

the  inducement  to,  must  consist  of  issuabU 

matter  vii,  63-66 

uses  of  the  inducement  to  vii,  67.  68 

Trial  of  issues  in  fact,  different  modes  of  vi,  16 

by  record  vi,  17 

by  jury  vi,  18 

Value — when  necessary  to  be  alleged  iv,  37 

omission  to  allege,  cured  by  verdict  x,  16 

Variance  v,  97-101 

(See  Abatement). 

VENUE  iii,  102-165 

necessary,  in  the  declaration,  for  all  travers- 

able  facts  iii.  102 

laid  in  the  declaration,  draws  to  itself  the  trial 

of  all  transitory  matters  iii,  132—134 

not  the  trial  of  local  matters  iii,  135 

seems  unnecessary,  in  the  plea,  replication,  &c. 

for  transitory  matters  iii,  141-143.   146 

may  be  changed,  on  motion,  for  sufficient 

cause  iii,  103.  (n.  19)  147 

omission  of,  in  the  declaration,  how  aided         iii,  155-157 
how  laid,  when  the  cause  of  action  arises  in  a 

foreign  state  iii,  112.  159 

on  the  high  seas  iii,  161 

not  necessary  for  negative  matters,  &c.  iii,  164 

Venire  de  novo — for  what  causes  awarded  ix,  68  ;  x,  63 

VfiRDicx-cannot  contradict  what  is  agreed  in  the  pleadings  iii,  168 
defects  in,  a  sufficient  cause  for  arresting  judgment  x,  9 
what  defects  in  the  pleadings  are  cured  by  x,  7.  8.  14-19 
defects  not  cured  by  x,  20-25 

what  defects  in,  are  grounds  for  arresting  judgment  x,  55-60 
what  faults  in  the  issue  are  cured  by  x,  28-31 

Vi  et  armis,  and  contra  pacem,  when  necessary,  in  de- 
claring iv,  38-40 
Videlicit  use  of                                                                       iii,  35-41 
Writ,  original  ii,  1 
is  the  commencement  of  the  suit  ii,  2 
defects  in,  pleadable  in  abatement            v,  132-136 
Writings,  unsealed,  need  not  be  counted  on                           iv,  43 


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